Do I have to Be Driving to Get a DWI in Texas?

Driving, which Texas law defines oddly, is a key component of a DWI case.

Intoxication is usually the most important issue in a DWI. Prosecutors may prove intoxication by showing the defendant completely lose the use of their mental or physical faculties or the defendant had a BAC level above the legal limit. The other two main elements, driving and while, could also be effective defenses to Section 49.04 charges. More on these defenses below.

A thorough Fort Worth criminal defense attorney never overlooks obscure DWI defenses, like lack of control over the vehicle. Most prosecutors in Tarrant County and surrounding jurisdictions have no-dismissal DWI policies. Prosecutors won’t dismiss or reduce DWI charges almost regardless of the facts. Therefore, aggressive defense at trial is usually the only way to successfully resolve these charges.

Stationary Vehicle

We “drive” to work even when we are sitting at a red light or stuck in traffic. The same principle applies to DWI charges. Defendants are “driving” vehicles even when their vehicles are not moving. In fact, defendants are “driving” for DWI purposes even if the keys are not in the ignition. Furthermore, defendants are “driving” even if their vehicles are stationary and they are literally asleep at the wheel.

These arrests only hold up in court if the vehicle was in a public place. Many of these arrests concur in publicly accessible places, like restaurant parking lots. There is a difference between a public place and a publicly accessible place, but the distinction is extremely fine.

Private driveways, on the other hand, are clearly private places. The curb in front of a house could be a private place as well.

Furthermore, the vehicle must have been in a drivable condition at the time. The tires must be inflated, the car must have gas, and so on. Usually, police officers do not make notes on such things in their reports. So, when the case goes to trial a year or more later, they may not remember such details.

DWI Collision

The “while” element of a DWI often comes up in DWI collision cases. It is often difficult to prove that the defendant was driving the car, at least beyond a reasonable doubt.

Usually, by the time emergency responders arrive at the scene, everyone has exited their vehicles unless the collision was something like a fireball wreck. Since an officer did not see the defendant behind the wheel, a credible civilian witness must provide this key testimony.

Unlike police officers, civilians are not professional witnesses. In fact, most have never testified before. So, an attorney can often undermine their credibility during cross-examination.

All this assumes the defendant did not admit they were driving the car. Defendants have a Fifth Amendment right to remain silent once custodial interrogation begins. If the defendant does not feel free to leave, the defendant does not have to say or do anything except comply with basic “step out of the car” commands.

Prosecutors usually never dismiss DWIs, but they may dismiss enhancements, like a collision or a child passenger, if the evidence is weak. The consequences of an ordinary DWI are bad, but not as bad as an enhanced DWI.

Reach Out to a Tough-Minded Tarrant County DWI Defense Lawyer

Prosecutors must prove every element of a DWI, including the driving element, beyond a reasonable doubt. For a confidential consultation with an experienced criminal defense attorney in Fort Worth, contact the Law Office of Kyle Whittaker. We routinely handle matters in Dallas County and nearby jurisdictions.