Smallville Star’s DUI Arrest: Was He Actually “Driving?”

Tom Welling, the 47-year-old actor best known for portraying Clark Kent in the Superman prequel series Smallville, was recently arrested for driving under the influence (DUI) in Yreka, California. The arrest took place just after midnight on January 26, 2025, in an Arby’s parking lot.

The case raises an interesting legal question that frequently comes up in DWI cases at our Texas criminal defense firm: If Welling was parked when officers found him, could he still be considered “driving” for the purposes of a DUI arrest?

While his case will be handled under California law, we’ll explore how a similar scenario might play out in Texas. In Texas, the term “Driving While Intoxicated” (DWI) can be misleading—because a person doesn’t actually have to be driving to be charged. Instead, the law focuses on whether the individual was operating a vehicle.

In this article, the criminal defense attorneys at Varghese Summersett break down what constitutes the operation of a vehicle under Texas law, how it applies to DWI cases, and whether someone in Welling’s situation could face similar charges in the Lone Star State.

We’ll be watching to see how the Smallville Star’s DUI arrest unfolds in California.

Operation of a Vehicle in Texas DWI Cases

When most people think of Driving While Intoxicated in Texas, they imagine someone behind the wheel, actively driving. However, the term “DWI” is somewhat of a misnomer. A person does not actually have to be driving a vehicle to be charged with DWI in Texas. Instead, they must be operating a vehicle while intoxicated. The legal elements of a DWI charge in Texas are:

• The defendant;
• On or about a particular date;
• Operated;
• A motor vehicle;
• In a public place;
• While intoxicated.

Notably, “driving” is not one of the required elements. Instead, a prosecutor must prove that the person was operating the vehicle. This is why prosecutors often emphasize “putting the defendant behind the wheel.” With serious consequences on the line, securing the best possible legal defense is critical if you have been accused of DWI where operation is an issue.

Smallville Star’s DUI Arrest: Would it Have Happened in Texas?

If the Smallville Star’s DUI arrest had happened in Texas instead of California, the legal outcome could have been different, but it’s also likely he would have been arrested here, as well. Several factors could influence whether he would face a DWI charge in the Lone Star State, including:

• • Was the car running? If the engine was on, even if he was parked, it could be considered operation.
  • Was he in the driver’s seat? Sitting in the driver’s seat, especially with the car on, increases the likelihood of an operation finding.
  • Were his hands on the wheel? Any physical interaction with the vehicle’s controls could support an argument for operation.
  • Did he admit to driving? Statements like “I was just driving here” or “I was about to leave” could be used as evidence of operation.
  • Was there other circumstantial evidence: If the car was in an unusual position – partially on the curb or in a drive-thru lane – it could indicate the vehicle had been recently operated.

In Texas, if an officer determines there is enough evidence that Welling operated his vehicle while intoxicated, he could be arrested and charged with DWI—even if he was parked when found. It’s important to note that, at this time, not a lot of information has been revealed regarding the Smallville Star’s DUI arrest. It will be interesting to see how the prosecution plays out.

Can You Avoid a DWI in Texas by Sleeping in Your Car?

Short Answer:
If you do anything beyond turning on the car for heat or air conditioning—such as putting it in gear, stepping on the brake, or moving it—you risk being arrested for DWI.

Longer Answer:
Each case is unique. Courts assess the totality of the circumstances, meaning they will look at all factors surrounding the situation. No published Texas case establishes that simply being inside a running vehicle is enough to prove operation. However, if there is at least one additional “operation fact,” a jury may find that the person operated the vehicle.

How Texas DWI Laws Differ from California DUI Laws

While both Texas and California have laws prohibiting driving under the influence, there are key differences in how each state defines and prosecutes these offenses. The Smallville Star’s DUI arrest highlights these legal distinctions.

1. Terminology: DWI vs. DUI

– Texas: The offense is called Driving While Intoxicated (DWI), and it applies to both alcohol and drug impairment.
– California: The term Driving Under the Influence (DUI) is used, covering impairment from alcohol, drugs, or a combination of both.

2. Definition of “Driving” and “Operation”

– Texas: A person does not need to be actively driving to be charged with DWI. Instead, the law focuses on whether they were operating the vehicle. Courts have broadly interpreted operation to mean taking any action that could make the vehicle move, such as having the engine running while in the driver’s seat.
– California: The law requires a person to have been driving the vehicle. Simply being in a parked car while intoxicated is not always enough for a DUI charge.

3. Blood Alcohol Concentration (BAC) Limits
Both states have a standard 0.08% BAC limit for most drivers.
– Texas: Has a stricter zero-tolerance policy for drivers under 21, meaning any detectable alcohol can result in a charge.
– California: It also has a zero-tolerance law for underage drivers but allows for slightly more discretion in enforcement.

4. Field Sobriety and Chemical Testing Laws

– Texas: Has implied consent laws, meaning that refusing a breath or blood test results in an automatic license suspension. However, officers typically need a warrant to draw blood unless there are exigent circumstances.
– California: Also has implied consent laws, but a person can refuse a preliminary breath test without penalty. After arrest, refusal results in license suspension and enhanced penalties.

5. Penalties and Consequences

– Texas: DWI penalities increase with prior offenses and aggravating factors. Even a first offense can lead to a license suspension, fines and possible jail time. Texas also has a 72-hour mandatory jail time for a first offense if a person has a BAC of .15 or higher.
– California: First time DUI offenders may face a license suspension, fines, and mandatory DUI education programs. Jail time is possibly avoidable with probation or alternative sentencing.

6. Can You Get a DUI/DWI While Parked?

– Texas: If a person is in a parked car but is found to be “operating” it in some way (e.g., engine running, foot on the brake), they can be charged with DWI.
– California: Being in a parked car may not automatically result in a DUI; prosecutors typically need additional evidence, such as an admission of driving. It remains to be seen what the evidence is in the Smallville Star’s DUI arrest.

Bottom Line:
Texas law is generally broader in its interpretation of operation, making it easier to charge someone with DWI even if they were not actively driving. In contrast, California’s DUI laws typically require stronger evidence that a person was in control of the vehicle with the intent to drive.

Protect Yourself Against DWI Charges

The Smallville Star’s DUI arrest serves as a reminder of how serious impaired driving charges can be, no matter the state. Texas law is strict when it comes to DWI offenses, and the concept of operation can be broadly interpreted.

At Varghese Summersett, our experienced DWI attorneys understand the nuances of Texas law and have a proven track record of defending clients against DWI charges. If you have been arrested for an intoxication offense, call us today  at 817-203-2220 to discuss your case and find out how we can help. Your future is too important to leave to chance.