Have you been arrested for Driving While Intoxicated but you weren’t driving when the officer came up to you, or better yet when you were not even in the vehicle? It is possible to be investigated, arrested, and charged with Driving While Intoxicated (DWI) under these circumstances. That does not necessarily mean you are guilty of an offense. Determining whether you broke the law requires further inquiry.
Driving While Intoxicated Statute Doesn’t Say Driving
Though the offense in Texas is called Driving While Intoxicated (DWI), you do not have to actually be “driving” a motor vehicle to be arrested and prosecuted. The legal requirements for DWI are that you, on a specific date, in Tarrant (or any other specific) County, Texas, “operated” a motor vehicle, in a public place, while intoxicated.
What is “operation” of a vehicle?
Our state legislature does not define “operation” in the Texas Penal Code, but we can look to several court decisions to help define the term. “Operation” can mean exerting any control over a vehicle. This can mean a variety of things, but is determined on a case by case basis. For example, if you are found passed out, sitting in the driver’s seat of a parked car with the engine running, a court could determine you operated the vehicle if there were facts that suggested you recently used the vehicle for it’s intended purpose. On the other hand, if you just got into your vehicle to “sleep it off” and had the car running so the air conditioning would be on, then you might be able to prove you weren’t operating the vehicle. If you are in an accident, present at the scene, and have the keys to the vehicle in your possession, a court could determine you recently operated the vehicle because of proximity and claim of ownership.
What if the officer never saw me driving the vehicle?
There are several major factors courts consider when determining whether operation has been proven in cases where there is no eye-witness to you driving: admission, proximity, and physical evidence.
- First, your admission to driving is the biggest piece of evidence the state can use against you. Statements such as “Yeah, I was driving from downtown Fort Worth” or “I was headed home from the bar when I hit that tree” are not going to help you. Your admission plus any another incriminating fact to operation is going to be enough for the State to proceed with prosecution. This can be troublesome when your presence at the scene might count as the “other” incriminating fact. Moreover, the existence of an accident will give the police a reason to contact you, investigate your presence, and even detain you for probable cause of breaching the peace. These legal detentions may involve pointed questioning without the protection of your Miranda rights. Do not be pressured into responding that you operated the vehicle in any way.
- Second, your proximity to the vehicle may be considered in determining operation. Most of the time, when accidents occur, the police arrive after the drivers have exited their vehicles. In single-car accidents, your proximity to the vehicle is a strong consideration in determining whether you operated the vehicle. For example, if you veer off the highway into the median, leave your vehicle, and begin to walk away, law enforcement may be able to establish operation. In multiple-car accidents, other drivers, passengers, or persons nearby may witness your presence at the crash location. Their statement to the police, whether written or on camera, may be enough to establish probable cause for operation.
- Third, any physical evidence of your control over or ownership of a vehicle will be used against you in determining whether you operated a motor vehicle while intoxicated. Police and prosecutors may consider whether a vehicle is registered to you, insured by you, owned by you, or even rented to you, in determining operation. If you are present at the scene of an accident, there are no other passengers around, the vehicle is registered to you, and you have the keys in your pocket, whether you admit to driving or not, the police could have sufficient probable cause for operation and the state may have sufficient evidence to prosecute.
The state may establish operation by piecing together several different pieces of the puzzle. Any information, or admission, you provide is just another piece for them to use.
If they can prove operation, does the State win?
Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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