I am starting to get calls from Troopers wanting to know how file charges when they arrest a driver for DWI who has a child under 15 years of age in the vehicle. Do they file both the DWI charge under 49.04 and the a charge under 49.045, or the only the latter??

Advise will be appreciated.

Janette Ansolabehere

The purpose of creating DWI + Child was to simplify the charging process. Officers have been filing a misdemeanor DWI and a felony Endangering a Child. This often split the prosecution between a county court at law and district court.

Now, officers should only file a single DWI + Child in district court. That gives the prosecutor the discretion to obtain a felony conviction or permit a plea to the lesser inlcuded offense of DWI.

Of course, if there is a felony DWI due to prior convictions, the officer should file the highest charge and let the prosecutor decide later whether to proceed also on the DWI + Child.

That's my two cents worth.

If the same conduct is subject to enhancement under both 49.09(b) and 49.045 it appears both felony charges should be filed. The worst outcome of all would be for a misdemeanor DWI charge to be filed and prosecuted under those circumstances (which occasionally happens when the misdemeanor prosecutor fails to recognize the offense is subject to enhancement and the offense is never reported to the felony prosecutor). A conviction under 49.04 would seem to bar prosecution under 49.045.

Since at least one different fact is necessary to be proved to show violation of both 49.09(b) and 49.045, the Blockburger test seems to be satisfied, so the prosecutor truly has the choice of trying to prove either or both cases. The same might be said for prosecutions under 49.045 and 22.041, but I would not try to get convictions for both of those. Instead the choice should be made up front.

The defense bar is touting the fact that deferred adjudication is available with respect to a 49.045 charge since 42.12(d)(1)(A) was not amended to include it. It will be interesting to see whether very many really push for that disposition and how prosecutors respond. Maybe it will depend on how you handled 22.041 prosecutions in the past.

It should be filed as DWI with Child Passenger under 15, a state jail felony.

If it qualifies as a DWI 3rd, a third degree felony, file it as a DWI 3rd, since it is a higher degree of felony.

I would never recommend that both DWI 3rd and DWI with Child Passenger under 15 be filed.