DWI, DUI, juvenile law, intoxication
January-February 2022

The curious case of juvenile DWIs

By Joshua Luke Sandoval & Kathleen Takamine
Assistant Criminal District Attorneys in Bexar County

Officer Lester Daniels of the San Antonio Police Department wasn’t particularly surprised by the small white Toyota he saw speeding on an access road, failing to signal during a lane change, and nearly colliding with another vehicle. He was, after all, working the early morning hours of a Saturday, a very busy time for police officers.

            He flipped on his patrol car’s lights, and the scream of the siren pierced the cold January morning as he pulled the Toyota over. Officer Daniels called in his location and ran the vehicle plates, annoyed that the driver decided to stop at a small, poorly lit service station parking lot. As he stepped out of his patrol car and approached the Toyota, he noticed that the diminutive driver, M.H, was alone in the vehicle and talking on her cell phone. He asked for her driver’s license and noticed that a strong odor of alcohol was coming from her breath, she had red, bloodshot eyes, and her words were slurred. When he asked for her date of birth, his straightforward DWI case took an unexpected turn: The driver was a juvenile.

            Although this scenario is hypothetical, it has tremendous illustrative value. Juvenile intoxication stops have a lot of variables, and because they don’t always track their adult counterparts, it is important to know how to handle those differences. Here in Bexar County, we have observed an increase in these cases over the past year, and as such we have gathered some additional insight into how to handle them. This article will detail juvenile DWI cases, how they are prosecuted, and some of the important distinctions with adult DWIs.


First and foremost, juveniles can be prosecuted for DWI. Let us put to rest any lingering thoughts to the contrary.[1] Secondly, let’s distinguish DWIs from Driving Under the Influence (DUI) cases. This distinction is important because although they are often treated interchangeably in the everyday lexicon, the two charges are distinct. In Texas, DUIs are Class C misdemeanors[2] in which a minor (anyone under age 21)[3] operates a motor vehicle in a public place while having any detectable amount of alcohol in his or her system.[4] These cases are handled in the local municipal or justice of the peace (JP) court and do not include confinement as punishment.

            In contrast, DWI elements make no restriction on the age of the vehicle operator but do require that the individual be legally intoxicated.[5] Juveniles charged with DWI face possible removal from their homes and placement in a secured juvenile facility.

            At the point we left off in our hypothetical, we cannot say with certainty that the stop has matured into a DWI investigation. Why? We don’t have enough evidence at our disposal to prove that the vehicle’s operator was legally intoxicated. On the other hand, with the driving facts, the odor of alcohol from M.H.’s breath, and her slurred speech, the hypothetical has already demonstrated sufficient evidence for a DUI. If Officer Daniels could conclude that the juvenile was intoxicated, as it is defined in Chapter 49 of the Texas Penal Code, then it would become a DWI investigation of a juvenile.

Investigating the juvenile DWI

Fortunately, developing reasonable suspicion to stop a juvenile and probable cause to take a juvenile into custody for DWI are fairly straightforward. For the most part, neither statute nor caselaw creates a distinction between what constitutes DWI reasonable suspicion and probable cause for juveniles versus adults. In Bexar County, the various situations that give rise to DWI investigations have included vehicle collisions, drivers who violate traffic laws, drivers asleep in their vehicles in dangerous locations, and so on.

            After identifying the driver as a juvenile, Officer Daniels notes some of the classic indications of intoxication: an odor of intoxicants, red bloodshot eyes, an admission to consuming alcohol, and slurred speech. At this point the investigation will track the procedures and law that govern adult DWI cases, including Standardized Field Sobriety Tests (SFSTs), because the officer is conducting an investigatory detention and has not placed the juvenile in custody. Therefore, the juvenile may consent to the SFSTs and answer the officer’s questions. Furthermore, juveniles are also subject to implied consent as covered in §724.011 of the Transportation Code, which defines arrest as including taking a child (as defined by the Family Code) into custody.

            This process of the investigation does not rise to a custodial detention for purposes of juvenile law (the significance of which will become apparent soon), although courts will certainly consider the “reasonable person” standard from a juvenile’s perspective.

Taking the juvenile into custody

After conducting the field sobriety tests, Officer Daniels determined that M.H. was intoxicated. He takes her into custody and places her in the back of his patrol vehicle. Now what?

            This is when Title 3 of the Texas Family Code takes over the procedures, and it is where most of the differences between the juvenile and adult criminal justice systems arise. The first important note about the juvenile system is the terminology. As a juvenile offender, M.H. is considered a respondent, not a defendant. She was not arrested but was taken into custody. She would not be convicted of a criminal offense but adjudicated in having engaged in delinquent conduct, the delinquent conduct being DWI.[6] The different terms reflect the legislature’s overall purpose in creating the Juvenile Justice Code. Family Code §51.01 specifically states it was enacted to ensure a juvenile is not given the “criminal” label and to ensure that the system does everything to promote the juvenile’s treatment and rehabilitation.[7]

            Once Officer Daniels takes M.H. into custody, he has to decide what to do with her and where to take her. The Family Code is strict regarding what can be done to juvenile offenders who are taken into custody. Under §52.02, he could take her to a Juvenile Processing Office (JPO),[8] do one of the enumerated acts listed in the code section,[9] or take her to an adult processing office for specific and limited purposes.[10] An important point to keep in mind is that even though she is taken into custody, she is not yet formally charged with a criminal offense. This point will impact a requirement of Officer Daniels: to notify M.H.’s parent, guardian, or custodian of her arrest and charges. We will discuss this requirement later.

            Right now, let’s briefly talk about the enumerated acts under §52.02, which apply in all juvenile cases. Once Officer Daniels takes M.H. into custody, if he doesn’t take her to a juvenile processing office, he must do one of the acts outlined in this section:

            1)   release her to her parent, guardian, or custodian,[11] 

            2)   take her before the office or official designated by the juvenile board,

            3)   take her to a secure detention facility or facility designated by the juvenile board,

            4)   take her to a medical facility if she requires medical attention, or

            5)   take her to the school in which she is enrolled if the school administrators accept her.

            If he takes her to the JPO, it is for reasons listed in Texas Family Code §52.025, such as keeping the juvenile there while waiting for a parent to pick her up, completing any forms or records, photographing and fingerprinting her, or taking her statement. This section specifically states that a juvenile cannot be held in the JPO for longer than six hours.[12]

            At this point, let’s focus on taking a juvenile to a location in which adult offenders are processed for the purpose of requesting and obtaining a breath sample. This is unusual because the Family Code is strict in preventing juvenile offenders from coming into contact with adult offenders or being present in areas normally occupied by adults. There are very few exceptions to this general rule. This particular exception is due to the fact that it is generally impractical for police departments to have a separate facility that holds the Intoxilyzer machines specifically for juveniles.[13] Once the juvenile is processed in this manner, officers are then required to follow §52.02.

            In our hypothetical, Officer Daniels took M.H. into custody for suspicion of DWI and brought her to the adult processing office to request and obtain a sample of her breath.[14] He first requested a breath sample by reading the Peace Officer DWI Statutory Warning (DIC-24 form) to her as he would to an adult offender. With regard to requesting a breath sample, because she is a juvenile, §52.02(d)[15] requires that M.H. be video-recorded while she either agrees or refuses to give a breath sample. This specific section also requires the police department to maintain the video recording until the case is final and to make it available to the juvenile’s attorney.

            An interesting question that has come up is whether the juvenile is required to be recorded on video in the adult processing office. Would it be sufficient for the officer to use his body-worn camera or the camera on the patrol vehicle to record the process? Even though §52.02(c) allows the juvenile to be taken to the adult processing office to be videotaped, §52.02(c)(2) requires only that the agreement to or refusal of the breath sample simply be video recorded. It does not mention where this recording should take place. The plain language of the statute appears to allow the various cameras outside the adult processing office to record this process. Officers just need to make sure that the recordings are preserved and made available to the juvenile’s attorney.

Breath specimen

Another interesting factor of this section is that it allows the juvenile to decide whether to give a breath sample without the concurrence of an attorney. It is normal for the Family Code to give juveniles more protection from police and prosecutorial action than adults. However, §51.09 outlines the juvenile’s ability to waive a right guaranteed by the U.S. Constitution, the Texas Constitution, and the Juvenile Justice Code. Under this section, an attorney must agree to waive a right afforded the juvenile unless a “contrary intent” clearly appears in the Juvenile Justice Code;[16] Family Code §52.02(d) has this contrary intent because it specifically indicates that the juvenile may be asked to give a breath sample without having her attorney present. Therefore, M.H. can agree or refuse to give a breath sample without consulting an attorney or having one present.

Blood specimen

Let’s move on to blood specimens and add an interesting twist. What if M.H. says that she is unwilling to give a breath sample but is willing to give blood? Could Officer Daniels accept a blood sample if she gives it voluntarily or even requests it? The best route is to obtain a search warrant for a blood sample once the juvenile refuses to give a breath sample. The reason for this is due to §52.02(d) discussed in the preceding paragraph. This section allows a juvenile to agree to a breath test, but it does not mention a blood test. Therefore, the plain language of the section indicates that the juvenile will need the concurrence of an attorney before she can agree to a blood sample.

            Regarding mandatory blood draws under Transportation Code §724.012(a-1), again, the best practice is for the officer to obtain a search warrant for a blood sample. Courts have leaned toward drawing blood as a more invasive search that requires more than a need for exigency due to possible loss of evidence.[17]

Charging the juvenile

After going through the procedures for the breath or blood sample, Officer Daniels must decide whether to formally charge M.H. with DWI. Up to this point, he has been investigating her under the suspicion of committing the crime. He could file this case as a DUI or a DWI. Should he file a DUI, he would still have to follow the mandates of §52.02 and then make the appropriate referrals with regard to Class C misdemeanors.

            If he decides to formally charge her with DWI, he can take her to the JPO at the police department or he can do, “without unnecessary delay,”[18] one of the enumerated acts in Family Code §52.02. These include taking the juvenile to a secure juvenile detention facility or releasing her to a parent and filing the case as a non-arrest charge. The decision to charge M.H. with a DWI is no different from deciding to charge an adult with DWI. Officer Daniels would use everything he observed while investigating this case, from witnessing the driving facts to his interaction with her during the investigation. If she agreed to a breath sample, the results would be another factor he considers.

            To assist him in his decision, Officer Daniels contacts the magistrate’s office where there is a prosecutor on duty 24 hours a day. Lucky for him, a prosecutor assigned to the Juvenile Section is there. He asks for advice. What would you tell him? What are some of the factors to consider when you advise him? Remember that a DUI case just requires proof that the minor (and M.H. definitely qualifies) has any detectable amount of alcohol in her system while operating a motor vehicle. DWI cases require proving that the individual was legally intoxicated. It is also important to keep in mind that as prosecutors, we walk a fine line between keeping to the goal of Family Code §51.01 (emphasizing the promotion of a juvenile’s treatment and rehabilitation) and our duty to the laws of Texas and to the safety and wellbeing of the community.

            To assist Officer Daniels, you would want to know the facts of the case. Specifically, how many signs of intoxication did the juvenile display? Would it be too difficult to prove that she was intoxicated? Was she involved in a collision with property damage or injuries?

            If the goal is to rehabilitate the juvenile and if the evidence does not rise to the level of what the DWI statute requires, then the case could be best served in municipal or justice of the peace (JP) court. The juvenile will still be required to undertake any alcohol-related programs under §106.071 of the Alcohol and Beverage Code. If the juvenile should have two prior convictions (for Class C misdemeanors in these courts, the juvenile will have convictions) of any alcohol-related offense, §51.08(b)(1) of the Family Code allows the municipal or JP court to waive its jurisdiction and transfer the case to a juvenile district court. Keep in mind that these convictions cannot be used to enhance a DWI to a DWI 2nd or a felony-level DWI. Penal Code §49.09 states that enhancements can be done only with convictions of operating a motor vehicle while intoxicated. The language does not include operating while under the influence.

            Another important matter to keep in mind, if the facts indicate that it is a felony case (i.e., DWI with Child Passenger, Intoxication Assault, Intoxication Manslaughter, etc.), is that the case should not be filed in municipal or JP court. This is especially true if the case involves someone being taken to the hospital or the case involves a death. It is here where we need to become sensitive to the victim and the community, to give an actual voice to the victim in the case. Once the case comes to the district or county attorney’s office, prosecutors can make a better assessment on how to proceed after a thorough investigation is done.

            If any injuries are considered serious bodily injury[19] or if the collision caused someone’s death, then the juvenile faces the possibility of being certified as an adult (depending on her age) or have the case filed as a determinate sentence case. These specific filing processes would involve a whole new discussion that could take up many pages. Suffice it to say that they would enable the cases to go beyond the juvenile’s 18th or 19th birthdays, the dates the juvenile normally ages out of the juvenile court’s jurisdiction.[20]

            Finally, it is good practice to inquire into the juvenile’s criminal and driving history. If she is showing a pattern of bad behavior, the case may be more suitable for the juvenile district court as there is a possibility of being placed into detention, taken out of the home, or placed in a secured facility. This would also apply to cases involving a wreck, which often involve victims. Because we are weighing the interest of the community in our considerations, it is better to deal with these types of cases in district court.

            In situations where the facts could go either way, it is best to advise the officer to file the case as a DWI. There are more opportunities to work with the juvenile with greater consequences should she fail to comply with any conditions set by the court. Due to the limited time we have with juveniles (as they age out at 18), the quicker we work with them, the better they are in the long run.

After charging

In our hypothetical, Officer Daniels ultimately charges M.H. with DWI and takes her to the JPO located in his police department. Once at the JPO, he notifies her parents by directly calling them and telling them that she had been taken into custody for DWI, as required by §52.02(b). The plain language of this section requires that it is Officer Daniel’s responsibility to notify M.H.’s parent. Though the statute requires the notification to be done in a prompt manner, there is no clear definition as to what “prompt” means. This is where it is important for officers to document all their interactions with juveniles. Courts will look at the procedure as a whole in determining whether an officer’s actions were appropriate. To determine whether the officer acted promptly, courts will consider the length of time between custody and notification, whether the juvenile made any statement in between those times, any difficulties the officers had in contacting the parents, and the officer’s activities prior to notifying the parents.[21]

            Similar to the notification statute, Family Code §61.103 gives parents the right to access the juvenile while she is in the JPO. However, even if the officer were not to abide by this section, that cannot be used as grounds to exclude evidence against the juvenile, nor can the officer be held liable for violating this section.[22]

            So, in the final steps of the process of taking M.H. into custody and formally charging her with DWI, Officer Daniels took her to the JPO where he notified her parents and finished his report. He then transported her to the County Juvenile Detention Center, where she was formally processed into the center.

            Here there is another quirk of the Family Code. Under §53.01, when a juvenile is taken to the detention center, an intake officer will determine if the person in custody is a child within the meaning of the Family Code and will determine if there is probable cause to believe the person in custody has engaged in delinquent conduct. The intake officer may be a probation officer or anyone authorized by the Juvenile Board. In other words, the Family Code is giving someone, who may not be an attorney, the power to determine probable cause in a criminal case. If this officer finds that the person is a child and that there is probable cause, then the child is processed and the case is accepted. The case is taken before the juvenile court judge for an initial hearing and another determination of probable cause. At this point, the officer’s role as a main protagonist is essentially done unless he is called into court for any subsequent hearings or trial.

            If the intake officer finds no probable cause, the child is released and the officer will have to make arrangements for her to be picked up by a parent. Then the officer is, once again, tasked with the decision to file the case in municipal or JP court or investigate the case further and resubmit the case as a non-arrest or at-large case.

            Obviously, it takes practice and knowledge of the court systems in your county to be able to adequately advise any officer about filing decisions. Make time to learn about the various programs available to juveniles in all the courts, municipal, JP, and district. And don’t be afraid to ask for help. So long as you can back up your advice with sound reasoning and a solid basis in the law, you will do fine.

Juvenile DWIs in Bexar County

One of the more interesting aspects of prosecution in Texas is the amazing diversity among jurisdictions in how offenses are handled. A great deal can be learned via shared dialogue and discussion on how offenses are trending and how various offices handle them. In Bexar County, we have seen a discernable spike in juvenile DWI referrals over the past year. This increase comes after several years of stagnant numbers.

            Our office doesn’t have a specific policy or manner of handling such cases, in part because our office is large enough to dedicate a section of prosecutors to only juvenile cases. Thus, each juvenile DWI is handled by a prosecutor who is quite familiar with the special requirements that come with these cases.                       

            Some time back we were discussing this very issue with a prosecutor from another jurisdiction when we were asked if we had encountered the problem of law enforcement issuing citations for DUI as opposed to making an arrest for DWI (in situations where intoxication could have presumably been proven by law enforcement). Why is doing so pernicious? Well, issuing a citation for DUI (which is a Class C misdemeanor) in situations where a DWI arrest is warranted surrenders leverage in plea negotiations. Furthermore, given that the former is a Class C and the latter a Class B at minimum, these decisions by law enforcement drastically decrease the services a respondent could receive from juvenile probation. These services include drug and alcohol awareness courses, specialty dockets for substance abuse, counseling, and even drug and alcohol testing. Thus, at the end of the day, such decisions rob the respondent of services and potentially an increased opportunity at rehabilitation.

            Although we have not experienced this problem, it might very well be an issue for some of you reading this article. If so, consider discussing the issue with direct supervisors and having meaningful conversations with law enforcement. Having served as supervisors throughout our careers, we can both attest that receiving feedback on issues from colleagues is important. In fact, it is sometimes the most efficacious means of identifying problems and addressing them. It could be the first step to positive change in your jurisdiction if you see this issue as a problem.

            Plus, there have been many instances where police departments have contacted our office to present and discuss various juvenile issues with the detectives and patrol officers. A lot of law enforcement officers don’t handle juvenile cases with great frequency. However, officers must possess knowledge of different policies, procedures, and statutory guidelines that apply only to juvenile cases. Whenever we have encountered instances where juvenile issues were not handled in the best manner, we made ourselves more available to officers. Strive to make law enforcement comfortable approaching you with questions. Sometimes queries on juvenile issues may come at less than opportune times, but making an effort to reach out when officers have questions can foster goodwill between the prosecutor office and the police department. We have even spoken to law enforcement agencies on various aspects of juvenile law and how it applies to search and seizure or detention and arrest. Discussion groups like this can go a long way not only in increasing awareness about some of the specifics of juvenile law but also fostering a good relationship with various agencies.

Concluding thoughts

Juvenile law, like other areas of the law, has its own unique requirements when it comes to statutes or procedures. It is important, however, to not be intimidated by these distinctions. Juvenile DWI referrals can require special attention to detail, especially if you do not work with them frequently, but they need not be burdensome. Knowledge of the law, communicating with colleagues, and maintaining good working relationships with law enforcement will guide you as you navigate even the most troublesome of juvenile DWI referrals.


[1]  Findlay v. State, 9 S.W.3d 397, 401 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

[2]  Tex. Alco. Bev. Code §106.041(c) (a DUI will not be classified as a Class C misdemeanor if ‘it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense’ under the DUI statute).

[3]   Tex. Alco. Bev. Code §106.01.

[4]  Tex. Alco. Bev. Code §106.041(a); we can’t resist pointing out that even someone who, criminally speaking, is an adult can still be charged with DUI under §106.01 and §106.041 of the Alcohol Beverage Code. Interestingly, “minor” and “child” are two different terms. A minor is anyone under 21. A child is anyone under 17 (the code references Family Code §51.02, which defines “child”).

[5]  Tex. Pen. Code §49.04(a).

[6]  See Tex. Fam. Code §54.03 and Tex. Pen. Code §49.09. This is the reason why a DWI can never be enhanced against a juvenile. Texas Penal Code §49.09 requires that to enhance a DWI to a DWI 2nd or a felony DWI, there needs to be prior DWI convictions. Because a juvenile is adjudicated instead of convicted, these cannot be used to enhance any subsequent DWIs.

[7]  See Tex. Fam. Code §51.01; see also Robert O. Dawson, Texas Juvenile Law, pp 8-9 (Texas Juvenile Probation Commission, 9th ed., 2008).

[8]  Dawson, Texas Juvenile Law, p. 111. A JPO is a room or office designated by the county juvenile board in which the police department is located. The room is specifically inspected by the juvenile board and is approved for the temporary detention of any juveniles taken into custody.

[9]  Tex. Fam. Code §52.02(a); see also Roquemore v State, 60 S.W.3d 862 (Tex.Crim.App. 2011).

[10]  Tex. Fam. Code §52.02(c).

[11]  From this point on, for the sake of brevity, we will refer to parent, guardian, or custodian as parent, but we mean all three unless we specifically state otherwise.

[12]  Tex. Fam. Code §52.025(d).

[13]   Dawson, Texas Juvenile Law at 483.

[14]  Referencing Chris Hubner and Sharon Pruitt in Juveniles (TDCAA © 2005/2007 ed). It is interesting to note that when you read this section, it specifically allows the juvenile to be taken to an adult processing office if the officer believes that the juvenile was operating a motor vehicle while under the influence of alcohol. A motor vehicle is narrowly defined under the Penal Code, which would exclude watercrafts and aircrafts. So it appears that, had M.H. been caught operating a boat while intoxicated or under the influence, Officer Daniels would not have been able to take her to get a breath or blood sample.

[15]  §52.02(d) reads: “Notwithstanding §51.09(a), a child taken into custody as provided by Subsection (c) may submit to the taking of a breath specimen or refuse to submit to the taking of a breath specimen without the concurrence of an attorney, but only if the request made of the child to give the specimen and the child’s response to that request is videotaped. A videotape made under this subsection must be maintained until the disposition of any proceeding against the child relating to the arrest is final and be made available to an attorney representing the child during that period.”

[16]  §51.09 reads in full: “Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if: 1) the waiver is made by the child and the attorney for the child; 2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it; 3) the waiver is voluntary; and 4) the waiver is made in writing or in court proceedings that are recorded.”

[17]  See Missouri v. McNeely, 133 S.Ct. 1152 (2013).

[18]  Tex. Fam. Code 52.02(a); Contreras v. State, 67 S.W.3d 181, 185 (Tex.Crim.App. 2001); by its terms, this section “contemplates that a ‘necessary delay’ is permissible.”

[19]  Tex. Penal Code §1.07 (46).

[20]  Sarah Bruchmiller & Hans Nielsen, “Determinate Sentencing for Juveniles,”  The Texas Prosecutor (July-August 2017); see Bruchmiller & Nielsen, “Juvenile Certifications,” The Texas Prosecutor (May-June 2017).

[21]  See Ray v. State, 176 S.W.3d 544, 548–49 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Vann v. State, 93 S.W.3d at 185 (citing Gonzales v. State, 67 S.W.3d 910, 911 (Tex.Crim.App.2002); Hampton v. State, 36 S.W.3d 921, 924 (Tex.App.—El Paso 2001), rev’d, Hampton v. State, 86 S.W.3d 603 (Tex.Crim.App.2002); Hill v. State, 78 S.W.3d 374, 382–84 (Tex.App.—Tyler 2001, pet. ref’d); In re C.R., 995 S.W.2d 778, 783 (Tex.App.—Austin 1999, pet. denied)); cf. J.B.J., 86 S.W.3d at 815 (applying “totality of the circumstances” approach to determine whether parental notification was promptly given).

[22]  Tex. Fam. Code §61.106 & §61.107.