Operation and DWI
Despite the title “driving while intoxicated”, the law really only requires what it calls “operation” while intoxicated. This is one of the main reasons why there is plenty of confusion when police make a DWI arrest on a person sleeping in their car (for example). In other words, there is no actual “driving” requirement for DWI stops! Can you believe the law allows something so ridiculous?!
What is Operation?
The worst part of the “operation” requirement is that the law does not clearly define what “operation” is. The most common, and simple, way to describe “operation” is performing an act that enables you to drive your car. As an example, if you fell asleep behind the wheel on the side of the road, you might have “operated” your car to get there. Conversely, if you never left your parking space but turned your car on, then perhaps you never “operated” your car. Neither of these are sure-fire examples, but are considerations depending on the other facts of your case.
So Just Sleeping in My Car is “Operation”?
One positive note on “operation” is that other facts must support it. In other words, just being asleep in a running car is not, by itself, “operating” the car. However, this does not stop police from making arrests, and DAs from filing charges, based on that fact alone. Police can still cause a great deal of anxiety and panic because they decided to make an arrest, even if the other facts of the case do not support the arrest. The problem is that almost *any* supporting facts may show “operation” even if it is the tiniest of details. For example, having feet touching the petals, even if your car is in park, might be enough to support a claim of “operating” your car since it shows that it might be used to drive.
Admissions to Driving
Here is the *real* problem with the “additional facts” to support operation. Your admission to driving can be that fact. Despite the existence of the doctrine of “corpus delicti” (an admission is not enough without other evidence), police will still use an admission of driving as evidence of operation. Further, that admission might appear in court as part of the Prosecution’s evidence supporting operation. Though there are things that you must do when asked by police (i.e., show license and insurance), you can refuse to answer questions or otherwise speak to the police. While police might use this refusal against you in other ways, it might prevent giving too much information relating to operation.
What if I “operated” my car while not drunk?
There is one bit of *good* news, though. Police and the Prosecution must still prove that you intoxication while operating. Simply showing that you “operated” your car is not enough for a DWI conviction. If you have open containers, then perhaps you might have been intoxicated while driving. Like with the “operation” fact, police might arrest you for DWI even before having solid proof that you were intoxicated *while* driving. This means that the fear and anxiety of a DWI arrest still affects you even if the DWI blood test shows no intoxication while “operating” your car.
To demonstrate the fine line between what is an is not “operation”, look at these actual cases.
Texas DPS v. Allocca
In this case the Defendant was asleep in his car. He had the engine running and he never left his regular parking space in his parking lot at work. He had his driver’s seat reclined and his feet were not touching the petals. Because there were no additional facts, such as an admission, to show that he ever “operated” his car, the evidence was not sufficient to show operation.
“While an officer need not observe an individual actually driving a vehicle in order to develop probable cause to believe that individual had been driving while intoxicated, the mere act of sitting in a legally parked vehicle while intoxicated does not necessarily establish probable cause absent some other factor, such as a recent collision or bystander reports, indicating that the accused actually drove the vehicle.”
Murray v. State
Like the Allocca case, the Defendant here had his driver’s seat reclined and the car was running and in park. There were no other people in the car and no alcohol containers. However, he was not in a parking space but rather was partially in the shoulder and partially in a driveway. Because he was the only person in the car there was enough evidence to show “operation” in this case. Specifically, this evidence could show that no one else could have driven the car to the location.
More about Mimi Coffey & The Coffey Firm
When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.
The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.
Mimi is also listed on several “top criminal lawyer near me” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.