NO DOUBT YOU WONDER WHAT THAT MEANS? READ ON IF YOU WANT THE ANSWER.
You can get arrested for driving while intoxicated even when you’re not driving. As strange as it sounds, it’S true.
The law actually states operating a motor vehicle while intoxicated is illegal. You can find the definition in Texas Penal Code 49. 04. This is where you can read the statute about what makes it illegal to drive while intoxicated.
If you are not driving or if your car is not in motion, you can still get arrested for driving while intoxicated.
An officer can arrest you for driving while intoxicated if you’re sitting in a public parking lot. If the engine is running, your car is in drive, and your your foot is on the brake, you can get arrested for DWI. You can get charged with driving while intoxicated even if you are not driving. Thus Driving while intoxicated does not mean driving.
This concept confuses people. The statute says that it is illegal to operate a motor vehicle in a public place while intoxicated. It does not say drive.
So even though the vehicle is not in motion you can still get arrested for driving while intoxicated. But the state has to prove that you were operating the motor vehicle while intoxicated. It must also prove your intoxication at the time of driving or operating. Thus a breath or blood test taken long after your arrest that is over the legal limit does not make you intoxicated at the time of driving.
You can be anywhere in a public place and operate a motor vehicle even if the vehicle is not moving. Thus you can get arrested for driving while intoxicated, even when not driving.
People think that you have to be driving your car to get convicted of driving while intoxicated. This is not correct. Operating your car while intoxicated is enough.
An example is where a you are in the drive through lane at a fast food restaurant. If your car is running, your foot is on the brake and the car is in gear, you can get arrested for DWI. This was a situation I had with a client some years ago.
If the engine is on, the car is in gear and your foot is on the brake, you can get charged with driving while intoxicated. Even though you are not actually driving. It requires the operation of a car in a public place while intoxicated. You do not have to be driving.
But this only applies if you’re in a public place . Many people think that being in a parking lot is not a public place. A parking lot is a public place under the law. If it’s a parking lot where the general public is can go without permission is a public place. The parking lot at the mall, at a restaurant, or at a business are all public places.
These are places the general public can go without first getting permission. If you are on private property, you cannot get convicted of driving while intoxicated. You must be in a public place or road. The law requires it be a public place. If you are on private property, you cannot get convicted of driving while intoxicated.
There are many examples of people getting arrested for driving while intoxicated in a public place that are not roads, highwayS or streets.
Most driving while intoxicated charges result from a person driving a car on a road, street or a highway. It is unusual that a person is in a parking lot and gets arrested for driving while intoxicated. But it can happen.
The drive through lane example above is an instance of operating but not driving. It was an actual case I had. The driver was asleep behind the wheel of his car with his foot on the brake and the engine on and in gear. Even though the car was not moving he was still charged with driving while intoxicated. But, because of sloppy police work, the jury found him not guilty. The state could not prove he was intoxicated at the time of driving.
The state has to prove intoxication at the time of driving. The breath and blood tests are never taken at the time of driving. Thus a breath or blood test over the legal limit does not mean intoxication at the time of driving.
You must be intoxicated at the time of driving to get convicted for this offense.
This is where argument lies in a trial. Was the person intoxicated. And if so, was the person intoxicated at the time of driving. The state must convince the intoxication occurred at the time of operating or driving the car. This is often hard to prove.
By Andrew Williams, board certified criminal defense attorney.
