Arrested for DWI Without Driving

Arrested for DWI Without Driving | Operation of a Vehicle in a DWI case

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.

Read more: An in-depth analysis of “Operation” of a Vehicle.

What if the officer never saw me driving the vehicle?

When evaluating what evidence is sufficient to determine operation of a motor vehicle, it is important to remember that proving an element of any offense does not require the testimony of an eye-witness, and certainly not the eye-witness testimony of a police officer.  As such, there are several different pieces of evidence, when put together, can satisfy the requirement of operation.  Arguing with a police officer upon detention, that he or she did not see you driving, will never help you.  Each piece of evidence will be obtained during a temporary detention prior to your arrest.

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?

Even if the state can prove operation, they still must prove you were intoxicated WHILE operating the motor vehicle.  As one example, you may have made a run to the local liquor store and on your way back home, run off the road and into a ditch.  You grab your vodka and start walking.  Police find you a mile away from the accident but a fourth of the way through the bottle.  You may be intoxicated now, but that does not mean you were intoxicated at the time of driving.  Distance in location and time along with the amount of alcohol you consumed are calculations an experienced DWI attorney can make to help you fight this arrest.
Being arrested for an offense is one thing, being proven guilty of that offense beyond a reasonable doubt is another.  If you find yourself arrested and charged with a DWI or similar offense, you will need the best DWI attorneys to fight for you. The attorneys at Varghese Summersett PLLC have handled thousands of DWI charges. They are trained to help you put as much distance between you and that vehicle as legally possible. If you have been investigated, arrested, or charged with DWI, contact us at 817-203-2220.

Contact us

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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About the Author

Benson Varghese

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Benson Varghese is the Managing Partner of Varghese Summersett PLLC. He is a state and federal practitioner who has handled thousands criminal cases and taken over 100 cases to trial by jury. Benson is frequently called upon to handle cases that require a high degree of knowledge in technology, scientific evidence, forensic evidence, as well as serious intoxication cases. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.