Can I Get a DWI in Texas While Not Driving?

At first glance this sounds like a silly question. After all, the acronym of DWI stands for Driving While Intoxicated. Simple logic would lead a rational person to conclude that to be convicted of DWI a person must actually be driving while actually intoxicated. You may be surprised to learn the answer to this question and reasoning behind it.

To understand the answer to this question, let us turn to the Texas Penal Code. In section 49.04(a) of that code, the offense of DWI is defined as “operating” a vehicle in a public place while intoxicated. Notice that the word drive is not included in this definition. Because the word drive does not appear, it has been left to courts, prosecutors, and defense attorneys to fight about what it means to operate a vehicle.

Courts Define Term Operate

It would have been much easier for everyone if the Texas legislature had simply defined what the word operate means in the DWI statute, but they did not do that. This ambiguity has led police to cite people and make arrests when someone is not driving, and prosecutors to file charges based on those arrests. Of course good defense attorneys have fought for people who are charged with DWI when the are not even driving, and this has led to a definition of what operate means by the courts of Texas.

The Texas Court of Criminal Appeals defined the term ‘operate’ under the DWI statute in 1995. In the case of Denton v. State, 911 SW 2d. 388 (Tex. Ct. Crim. App. 1995), a man was charged with operating a vehicle without permission. In that case it was shown at trial that the accused man got into a truck and tried to steal it, but because the truck needed time to warm up, it would not move. The court decided that the word ‘operate’ in relation to a vehicle happens when “the totality of the circumstances…demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.”

Even that definition leaves a lot of wriggle room. Within this definition there are a number scenarios in which a driver could be convicted of operating a vehicle while intoxicated without ever driving the vehicle.

Words of Warning

There are a few things that everyone should be aware of before getting in a car, or even thinking about operating it. There are a number of behaviors that could fit into the court’s definition of operating a vehicle. For example:

  • Starting your car to turn the heater on to get warm
  • Listening to the radio in your car
  • Sleeping in your car with the keys in the ignition
  • Using remote start on your car and walking towards it

You should never assume that conduct that you think is innocent and harmless will be perceived the same way by the police.

If you have been arrested for DWI in or around the Dallas area, contact us. At The Wilder DWI Defense firm we will look at each and every fact of your case and apply it in a way that best serves you. Police and prosecutors are eager to get you to capitulate to their charges and demands, and that is why you need a strong DWI defense team that will stand up for your rights. We are the defense team that your case deserves.