A call I've received frequently here at TDCAA concerns the unit of prosecution for DWI Child Passenger. Many very smart and conscientious prosecutors out there have evaluated the statutes and the case law and decided you can charge one count per child that is in the car when the defendant is pulled over for DWI. I've never found a case on point that says for sure you can or cannot do this.
However, this week the CCA put out an opinion (Ex Parte Benson, No. WR-81,764-01, April 15, 2015) that is almost certain to keep you from doing that in the future. The opinion says that DWI is a single charge, no matter what the "enhancement" element is. It doesn't consider child passengers specifically, but it does specifically differentiate DWI and Intox Manslaughter in terms of units of prosecution.
Those of you I have spoken with who have decided you should be charging multiple counts on child passenger cases have understandably said you feel you should do so because of the similarities to Intox Manslaughter cases where the unit of prosecution is the number of victims. That reasoning has now specifically been disallowed.
Since a question we get often at TDCAA, I wanted to archive this for future reference here on the forums so we can access the cases when needed. If anyone has any more input on the subject, please feel free to chime in!
I have a Probation Revocation hearing this afternoon. Defendant is currently on probation for 2 charges of DWI w/ Child Passenger, arising out of one DWI. He was placed on probation prior to the above-listed cases were decided. Any thoughts on whether they'd apply retroactively to my case? I was thinking I would just proceed on revocation of one of the cases and abandon the other, allowing him to negatively discharge. Help!
Posts: 50 | Location: 21st District | Registered: September 06, 2012
Has not your defendant already been convicted of two offenses? If so, then abandoning one charge now is likely too late. If you choose A for revocation, the mere fact that B is ultimately discharged may not prevent the defendant from challenging A as double jeopardy (based on what happened in B). Thus, I would consider seeking revocation in both cases. Then, if one of the convictions is ultimately set aside, it will make no difference whether habeas relief is granted as to A or B. Otherwise, I believe it might make a difference, as conviction A will be set aside through habeas and conviction B will have been subjected to 42A.701(f)?