Can You Avoid a DWI by Sleeping it Off in a Car? | Operation of a Vehicle

 In DWI

Operation of a Vehicle in Texas

When most people think of Driving While Intoxicated as an offense in Texas, they think of exactly that: a person driving a vehicle while they are intoxicated. The term “DWI” is somewhat of a misnomer in Texas. A person does not have to “driving” a vehicle in order to be charged with driving while intoxicated. Learn more about what qualifies as operation of a vehicle in Texas.

Operation is in the Definition

The elements of Driving While Intoxicated in Texas are:

  • The defendant;
  • on or about a particular date;
  • operated;
  • a motor vehicle;
  • in a public place;
  • while intoxicated.

Notice that driving is not one of the elements of DWI. Instead, a prosecutor must prove the person accused was operating the vehicle. This is why prosecutors talk in terms of “putting the defendant behind the wheel” or “wheeling” the defendant.

Texas Drivers Risk DWI by Sleeping in a Car

Driving, as you notice, is not an element of DWI or any other intoxication-related offense in Texas. Instead, legislators used the word “operating.” Further complicating matters is the fact that the legislature did not define “operation.” The most common definition that appears in case law generally boils down to some version of this statement, “the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.”

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 its 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 Does “Operation” Mean in DWI Cases in Texas?

Essentially, prosecutors must be able to prove that the accused controlled or affected his vehicle in a manner that would allow the vehicle to be used for its intended purpose. A vehicle may be used for many things, but its intended purpose is transportation. Unintended uses of a vehicle include using it as a place to sleep, stay warm, stay cool or shelter.

The issue of operation comes up frequently when the facts show a person was found asleep or passed out behind the wheel. A jury would have to believe beyond a reasonable doubt that the accused took actions to use the vehicle for its intended purpose. As a general rule, in order to find that there was operation, there needs to be at least one additional “operation fact” beyond being asleep inside a running vehicle. This might be circumstantial evidence that the person drove, such as being passed out in a lane of traffic, or being on the shoulder of the highway. This circumstantial evidence, especially when the accused is the only one in the vicinity of the vehicle, may be enough to convince a judge or jury that the person used the vehicle for its intended purpose. This would be different than a person who gets into his car, turns it on to stay warm, and then intentionally goes to sleep in the car so he does not get onto the roadway while intoxicated.

Can you Avoid a DWI in Texas by Sleeping it Off in the Car?

Short answer: If you do anything besides get in your car, turn it on, adjust the temperature controls and radio, you are likely to be arrested and charged with a DWI.  That “anything besides” could include putting the vehicle in neutral, stepping on the brake pedal, or engaging the clutch.

Remember being arrested is not the same as being convicted. The remainder of this article focuses on how courts have ruled on legal issues that arise in these situations. It does not mean a jury of your peers will necessarily agree.

The longer answer to this question is that it really depends on whether or not a judge or jury believes the person operated the vehicle. Each case will be analyzed on an individual basis. Not a single published case in Texas stands for the proposition that just being inside a running vehicle is enough to constitute “operation.” On the other hand, if there is at least one additional “operation fact” it is possible that a fact-finder will believe the vehicle was operated.

Below is a list of the leading cases in Texas where operation of a vehicle was an issue. As you can see, in most of the published cases, the jury was presented with additional operation facts that led to the conviction being upheld on appeal:

CaseBasic FactsAdditional fact(s) on which "operation" turnedSufficiencyCourtCiteYear
Reynolds v. StateVehicle found half in a ditch, and half on a farm-to-market road, with the defendant alone behind the steering wheel and with both feet on the floorboardAdmissionSufficient to show "operation"Amarillo744 S.W.2d 1561987
Hernandez v. StateVehicle stopped in the roadway, facing oncoming traffic with the engine running, lights on, and defendant asleep in the driver's seat with his foot on the brakeIn a lane of traffic with engine runningSufficient to show "operation"San Antonio773 S.W.2d 7611989
Ray v. StateVehicle was stopped in the middle of the road with the engine running, gearshift in "Drive," and defendant slumped behind the steering wheel with his foot on the brakeVehicle in "Drive"Sufficient to show "operation"Dallas816 S.W.2d 971991
Pope v. StateVehicle stopped in the roadway with the engine running, lights on, and the vehicle's owner sitting behind the steering wheelIn a lane of traffic with engine runningSufficient to show "operation"Austin802 S.W.2d 4181991
Barton v. StateDefendant was asleep at wheel with feet on clutch and brake, engine idling, and car in roadway protruding into intersection. Upon being awakened by police, defendant proceeded to engage clutch and change gears and operate vehicleFoot was on clutch and brakeSufficient to show "operation"Dallas882 S.W.2d 4561994
Milam v. StateDefendant was sitting alone in a parked car. The engine was running, the car was in gear, and defendant's foot was on the brake. The car had been in its location for less than five minutes. When awakened, defendant put the car in reverse.Vehicle was in gearSufficient to show "operation"Houston-1976 S.W.2d 7881998
Allen v. StateDefendant passed out behind the wheel, with one foot on the clutch and the other on the brake; the car was in gear and the engine was running.Vehicle was in gearSufficient to show "operation"Houston-12001 WL 7003892001
Hearne v. StateEngine was running, defendant was in driver's seat, vehicle was registered to defendant, and no other person was nearbyIn a lane of traffic with engine runningSufficient to show "operation"Houston-180 S.W.3d 6772002
Boyle v. StateDefendant found stopped in traffic with foot on brake pedal and engine runningFoot on brake pedalSufficient to show "operation"Houston-14778 S.W.2d 1131989
Garver v. StateNo one else visible in the observable area; Defendant was sitting in the driver position; the engine was running and the lights were on; it was 12:30 on an August morning in a deserted parking lot; Defendant turned off ignition in front of officer and was lostHeavy body damage that appeared to be of recent origin and defendant was at a location that was not on the way from her origin to her destinationSufficient to show "operation"Dallas2002 WL 11330192002
Hurd v. StateWitness to an accident identified Defendant as the driver of the vehicleWitness to operationSufficient to show "operation"Amarillo2002 WL 7372962002
Stagg v. Texas Dept. of Public SafetyOfficials concluded that probable cause existed that driver of vehicle, which was blocking lane of traffic with engine running and lights on, had operated vehicle, noting the fact that the car was in the center of the street, not stopped at the curbThe vehicle was in the center of the roadway, runningSufficient to show "operation"Austin81 S.W.3d 4412002
Markey v. StateTruck was stopped with its engine running with defendant sitting behind the steering wheel shortly after the accident occurredBehind the wheel after an accidentSufficient to show "operation"Houston-142003 WL 2532992003
Wooten v. StateWitness testified that she "heard a crash, walked outside and saw defendant inside the crashed vehicle trying to get the vehicle in gear to leave. Witness believed engine was onBehind the wheel after an accidentSufficient to show "operation"Fort Worth2003 WL 2535742003
Sneed v. StateOfficer testified she saw Defendant's vehicle pull into a parking lot, never losing sightOfficer witnessed operationSufficient to show "operation"Beaumont2003 WL 229663102003
Morrow v. StateDefendant's vehicle disabled on feeder road after accident, no other vehicles involved. Vehicle struck concrete wall, motor running and losing coolant. Defendant told officer she had "run off roadway" and admitted on cross-examination that she was drivingAdmission.Sufficient to show "operation"Beaumont2004 WL 2567042004
Newell v. StateDefendant told officer he had just dropped friends off. He was parked on the shoulder of a freeway ramp with his engine running, his headlights on, and his foot on the brakeFoot on the brake and on the shoulder of a rampSufficient to show "operation"Fort Worth2005 WL 28385392005
Dornbusch v. StateDefendant found asleep in vehicle behind restaurant with headlights on, engine running, and radio playingVehicle not moving because wheels were touching curbSufficient to show "operation"Fort Worth262 S.W.3d 4322008
Kerr v. StateA witness heard a car slide off the road and immediately saw defendant get out of the car alone.Driver seen emerging from vehicle immediately after a wreckSufficient to show "operation"Fort Worth921 S.W.2d 4981996
Sheldon v. StateDefendant found sitting alone behind wheel of vehicle, which was situated in the driving lane of a public highwayIn the driving lane of a public highwaySufficient to show "operation"Texarkana2008 WL 23886872008
Texas Dept. of Public Safety v. AlloccaDefendant asleep in driver's seat with engine running in the parking lot of the business where he worked; parked in a normal parking spot; no headlights on; feet were on the floorboard; chair reclinedXInsufficient to show "operation" even at the probable cause levelAustin301 S.W.3d 3642009
Abraham v. StateOfficer discovered driver alone, either asleep or passed out in the driver's seat of his car, with the engine running, just shy of the intersection of two roadways.Stopped in the center of a lane of trafficSufficient to show "operation"Dallas330 S.W.3d 3262009
Molina v. StateDefendant found asleep behind the wheel of the vehicle. The keys were in the vehicle's ignition and the car and radio were both on. Defendant was also in a position in the vehicle that he was able to reach the brake pedal.The brake lights were flickeringSufficient to show "operation"Amarillo2010 WL 9805602010
Shields v. StateVehicle parked between two moving lanes of traffic in early morning hours with engine running. Defendant was alone in vehicle in the driver's seat.Parked between two moving lanes of trafficSufficient to show "operation"San Antonio2012 WL 2194322012
White v. StateDefendant was sitting behind the steering wheel of the vehicle with the engine running, the transmission in drive, and the brakes engaged. Officer testified that she turned the engine off prior to leaving Defendant in the drive-through; Defendant later admitted on scene she had been driving.Vehicle was in drive.Sufficient to show "operation"Eastland412 S.W.3d 1252013
Murphy v. StateIn response to a call, Defendant discovered at 4 a.m. unconscious and seat-belted behind the wheel of his truck with the engine running in the roadway at an intersectionVehicle found in an intersection runningSufficient to show "operation"Austin2014 WL 41794432014
King v. StateDefendant was the only person in the vehicle. Defendant was sitting in the driver's seat, the keys were in the ignition, and the engine was turned on. The police car video showed the brake lights of the vehicle illuminated as Defendant began to move around inside the vehicleEngine was on and brake lights were lit up.Sufficient to show "operation"Dallas2014 WL 28079932014
Murray v. StateDefendant's vehicle engine was running, car in park, and he was in the driver's seat, reclined and sleeping. He was the only person in the vehicle, and he was the only person in the vicinity.Vehicle was partially in the shoulder and partially in the driveway of a fireworks stand at approximately 2 a.m. and there was no one else around that could have driven the vehicle there and no alcohol containers in the vehicle.Sufficient to show "operation"Court of Criminal Appeals457 S.W.3d 4462015
Priego v. TexasDefendant unconscious and the only person in control of the vehicle, which was in park with engine running. Defendant wearing seatbeltWitness provided circumstantial evidence of driving between 4 and 4:20 and the officer arrived at 5:12. * Also wins the award for the highest BAC I've ever seen in a person who lived to talk about it. .478!Sufficient to show "operation"Texarkana457 S.W.3d 5652015
Black v. TexasDefendant found slumped over center console truck, sitting in driver's seat, car not running, alone in vehicleThe truck crashed into a tree and several Witnesses put the defendant in the driver's seatSufficient to show "operation"Texarkana2015 WL 67210962015
Han Ok Song v. StateDefendant found asleep in driver's seat, car was running. Officer testified that Defendant placed car in reverse and then back in park when officer's were on sceneOfficer witnessed operationSufficient to show "operation"El Paso2015 WL 6311632015

What if the officer never saw you driving?

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 eyewitness, and certainly not the eyewitness 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 the prosecutor convinces the jury that you were operating the vehicle, 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.

Video: Circumstantial DWI cases in Texas

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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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