The Prosecutor, May-June 2010, Volume 40, No. 3

Keeping children safe from intoxicated drivers

As prosecutors and prosecutor support staff, we are quick to respond to a child in need, from prosecuting child abuse and assault, to trying family violence cases, to spending extra time to get kids ready to take the stand. With all we do, it can be easy to miss opportunities to keep children from harm. That is where the Child Protective Services Division (CPS) of the Department of Family and Protective Services (DFPS) comes in. With just a little information and notice, authorities there will look into situations of neglect and harm in cases of DWI with a child passenger.1
    There seems to be a mix of standards and methods across the state for how we are handling this weapon in our arsenal. When there is a car wreck or injury, CPS is generally notified, but during a traffic stop for DWI where a child is a passenger, reports to CPS are sporadic. After speaking with several law enforcement agencies, their DWI task forces, prosecutors across the state, and CPS officials, I have found that the overwhelming majority agree that this is a crime of which CPS should be notified.
    Yet just as overwhelmingly, no one could say that was actually happening. While some offices may be doing a better job of it, let’s take a look at how we can improve and get on the same page.

Best practice

First and foremost, the best thing to do is report the situation to CPS. CPS would prefer that prosecutors report it if we are unsure if peace officers reported it. It is better to have duplicates than to miss an opportunity. In fact, CPS takes the stance that prosecutors are obligated to report this crime under the Family Code,2 which re-quires that professionals who believe that abuse or neglect has occurred shall immediately make a report. Prosecutors know how a DWI can turn into intoxication manslaughter with ease, so it is not a stretch to see that driving while intoxicated with a child in the car is a form of neglect.3 And though some might argue that this statute does not apply to prosecutors as we rarely have direct contact with child passengers, it is clear that CPS would prefer that we report it. In fact, that same section of the Family Code makes it clear that attorney privilege does not shelter attorneys, prosecutors or defense, from the duty to report abuse or neglect to CPS.
    When we asked various offices if they reported these crimes to CPS, the most common reply was that they did not because they expected that office X was. Office X usually responded with, “We thought office Y was reporting them.” Work with your local agencies to design a structure so that these cases will be reported. Currently it is possible for law enforcement agencies to make sure certain reports (mostly commonly sexual assaults) are flagged for follow-up; including a simple code on the form triggers that follow up. Adding a step at intake to flag these reports would help ensure that a call to CPS is made. (See the sidebar for what information CPS needs when reporting this crime.) If all the information is not available, CPS will take a partial report and continue from there. Reports can be made online at or by phone at a confidential number meant for law enforcement only (TDFPS asked us to remove the number so it is not available to the public at large, but law enforcement agencies likely already know it). The general number is 800/252-5400.
    Reporting these crimes does not mean that every DWI with a child passenger is going to result in CPS swooping in and removing children from homes. What is does mean is that taking these steps will allow CPS to fulfill its role in ensuring children’s safety. Not surprisingly, many of our DWI with a child passenger offenders may have open files at CPS, and it is frightening to realize these files might not get this necessary addition. Additionally, a DWI arrest may point out causative issues of alcohol and drug use that may contribute to existing child abuse or endangerment. Often the child may be subjected to dangerous and neglectful situations long before we can address them in sentencing, and CPS can bridge this gap. Once this line of communication is opened, we can also expect the information we might get from CPS to be helpful with our own sentencing hearings, presentence investigations, and plea bargaining.
    With a few simple steps, we can ensure that children are getting one more chance for help before a plain ol’ DWI leads to an intoxication assault or manslaughter.


1 Tex. Penal Code §49.045.
2 §261.101.
3 “Neglect” includes:
(A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;
(B) the following acts or omissions by a person:
     (i) placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child … (Tex. Fam. Code §261.101).

Info for CPS reports of abuse or neglect 

1.  About the child(ren) at risk:
    • name, age, and/or DOB
    • address or some other locating information (directions to the home if the address is rural or a P.O. Box)
    • school/daycare name and address
    • siblings’ names, ages, etc.
2.  About the parents and other household members:
    • names and ages
    • telephone numbers and address or some other locating information (directions to the home, if the address is rural or a P.O. Box)
    • place of employment and telephone number
    • relationship to child(ren)
    • involvement in the abuse/neglect
3. Nature of harm or risk:
    • description of child’s condition and/ or injury.
    • how the harm occurred or why the child appears to be at risk.
    • what explanation was provided by child or parent? Describe his/her behaviors and attitudes (does parent seem nervous? Angry? Is child fearful?).
    • when and where the incident occurred.
4. Collateral contacts who may have additional information:
    • names
    • contact/locating information