Managing Attorney
More often than you would think, police in Texas arrest a driver and charge him with DWI when he was not actually driving a car. This can happen when a driver is asleep behind the wheel or if the police do not actually witness the defendant driving and make an arrest based on mistaken assumptions or bad information regarding who was actually the driver. But can you be arrested if you were not actually the driver? Can you be arrested if you were the driver, but were parked or asleep? How can you raise a defense that you were not driving the vehicle?
How is driving defined for a DWI in Texas?
Under the Texas DWI statute, a person commits the offense of driving while intoxicated for “operating” a motor vehicle while intoxicated. It is up to prosecutors to establish every element of a DWI, including the element of operation. Under Texas law, the word “intoxicated” is given a specific legal meaning, but there is no statutory definition for “operating.” However, “operation” covers more than just driving and courts have held that while driving does involve operation, operating does not always involve driving.
Courts have held that a person is “operating” a motor vehicle for purposes of the DWI statute when “the totality of the circumstances demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” In a DWI, whether this definition has been met will often be up to a jury to decide.
Is being asleep in a car enough evidence of driving for a DWI?
It depends. There can be many scenarios when a driver is asleep behind the wheel. Whether the facts present enough evidence of “operation” will be determined on a case-by-case basis.
In some DWIs, a driver will actually fall asleep behind the wheel while stopped at a red light or in line at a fast-food drive-through. In many of these cases, the only reason the car will not be in motion will be that the driver has his foot on the break. In these cases, there is little question that the driver will be considered to be “operating” the vehicle for purposes of a DWI arrest.
However, there are many cases where “operation” is less clear. For example, in some cases, a person may be asleep behind the wheel of a parked car, with the air conditioning on and with no intent of driving anywhere (perhaps the driver was just taking a nap in an air-conditioned environment). Because there is no definition of “operation” in Texas it may be up to a jury to decide whether the person was “operating” a vehicle. In a DWI trial, a jury will not be given a definition of “operating” so it will be up to them to decide whether prosecutors have established this element of a DWI.
What if the police did not see you drive?
When the police arrest a driver for DWI who they did not actually observe driving, they must have proof of some kind that the person they arrested was actually the driver. This can include statements from civilian witnesses (sometimes referred to as “wheel witnesses”), circumstantial evidence, or the defendant’s own statements. It is always the prosecutor’s job to establish every element of the offense, including that a defendant was the one who was operating the vehicle. If prosecutors cannot present sufficient evidence of operation, then that could lead to the dismissal of a DWI or present a strong defense for an acquittal (a verdict of “not guilty”) at trial.
How can you raise a defense that you were not operating or driving a vehicle?
A defense that you were not operating a vehicle (including a defense that you were not the driver) in a DWI case can be presented at trial or shared with prosecutors before a trial if your DWI attorney believes that prosecutors will dismiss the case based on the information provided. Although a judge does typically not have the power to dismiss a DWI, the judge may find that prosecutors have not presented enough evidence of probable cause to arrest, which could lead to the dismissal of your case.
The exact manner that a defense that you were not operating a vehicle should be raised will vary depending on the facts of your case, your prosecutor and your judge. The reality is that many prosecutors (especially inexperienced prosecutors) are reluctant to dismiss a DWI charge, even if they are presented with strong evidence that a defendant was not operating a vehicle. If that is the case, then it is usually not a good idea to share information with them, since the information will not lead to a dismissal and only help prosecutors anticipate your defense.
Attorney Jose Ceja is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Mr. Ceja is a former prosecutor with extensive experience defending DWIs in the Houston area. If you have been arrested for DWI anywhere in the Houston area, call Ceja Law Firm today. Mr. Ceja and his staff are all fluent in Spanish.
