By Benson Varghese

Published on: March 3rd, 2016 at 8:21 AM
Last Updated: August 21st, 2020 at 8:19 PM

When most people think of Driving While Intoxicated as an offense in Texas, they think of exactly that: a person driving a vehicle while they are intoxicated. The term “DWI” is somewhat of a misnomer in Texas. A person does not have to “driving” a vehicle in order to be charged with driving while intoxicated. Learn more about what qualifies as operation of a vehicle in Texas.

Quick Navigation
  • Operation is in the Definition
  • Drivers Risk DWI by Sleeping in a Car
  • What Does "Operation" Mean in DWI Cases?
  • Can you Avoid a DWI in Texas by Sleeping Off in the Car?
  • What if the officer never saw you driving?
  • If the prosecutor convinces the jury that you were operating the vehicle, does the State win?
  • Learn More About the Operation of a Vehicle in Fort Worth DWI Cases


Operation is in the Definition

The elements of Driving While Intoxicated in Texas are:

  • The defendant;
  • on or about a particular date;
  • operated;
  • a motor vehicle;
  • in a public place;
  • while intoxicated.

Notice that driving is not one of the elements of DWI. Instead, a prosecutor must prove the person accused was operating the vehicle. This is why prosecutors talk in terms of “putting the defendant behind the wheel” or “wheeling” the defendant.

Drivers Risk DWI by Sleeping in a Car

Driving, as you notice, is not an element of DWI or any other intoxication-related offense in Texas. Instead, legislators used the word “operating.” Further complicating matters is the fact that the legislature did not define “operation.” The most common definition that appears in case law generally boils down to some version of this statement, “the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.”

This can mean a variety of things, but is determined on a case by case basis.  For example, if you are found passed out, sitting in the driver’s seat of a parked car with the engine running, a court could determine you operated the vehicle if there were facts that suggested you recently used the vehicle for its intended purpose. On the other hand, if you just got into your vehicle to “sleep it off” and had the car running so the air conditioning would be on, then you might be able to prove you weren’t operating the vehicle.  If you are in an accident, present at the scene, and have the keys to the vehicle in your possession, a court could determine you recently operated the vehicle because of proximity and claim of ownership.

What Does “Operation” Mean in DWI Cases?

Essentially, prosecutors must be able to prove that the accused controlled or affected his vehicle in a manner that would allow the vehicle to be used for its intended purpose. A vehicle may be used for many things, but its intended purpose is transportation. Unintended uses of a vehicle include using it as a place to sleep, stay warm, stay cool or shelter.

The issue of operation comes up frequently when the facts show a person was found asleep or passed out behind the wheel. A jury would have to believe beyond a reasonable doubt that the accused took actions to use the vehicle for its intended purpose. As a general rule, in order to find that there was operation, there needs to be at least one additional “operation fact” beyond being asleep inside a running vehicle. This might be circumstantial evidence that the person drove, such as being passed out in a lane of traffic, or being on the shoulder of the highway. This circumstantial evidence, especially when the accused is the only one in the vicinity of the vehicle, may be enough to convince a judge or jury that the person used the vehicle for its intended purpose. This would be different than a person who gets into his car, turns it on to stay warm, and then intentionally goes to sleep in the car so he does not get onto the roadway while intoxicated.

Can you Avoid a DWI in Texas by Sleeping it Off in the Car?

Short answer: If you do anything besides get in your car, turn it on, adjust the temperature controls and radio, you are likely to be arrested and charged with a DWI.  That “anything besides” could include putting the vehicle in neutral, stepping on the brake pedal, or engaging the clutch.

Remember being arrested is not the same as being convicted. The remainder of this article focuses on how courts have ruled on legal issues that arise in these situations. It does not mean a jury of your peers will necessarily agree.

The longer answer to this question is that it really depends on whether or not a judge or jury believes the person operated the vehicle. Each case will be analyzed on an individual basis. Not a single published case in Texas stands for the proposition that just being inside a running vehicle is enough to constitute “operation.” On the other hand, if there is at least one additional “operation fact” it is possible that a fact-finder will believe the vehicle was operated.

Below is a list of the leading cases in Texas where operation of a vehicle was an issue. As you can see, in most of the published cases, the jury was presented with additional operation facts that led to the conviction being upheld on appeal:

What if the officer never saw you driving?

When evaluating what evidence is sufficient to determine operation of a motor vehicle, it is important to remember that proving an element of any offense does not require the testimony of an eyewitness, and certainly not the eyewitness testimony of a police officer.  As such, there are several different pieces of evidence, when put together, can satisfy the requirement of operation.  Arguing with a police officer upon detention, that he or she did not see you driving, will never help you.  Each piece of evidence will be obtained during a temporary detention prior to your arrest.

There are several major factors courts consider when determining whether operation has been proven in cases where there is no eye-witness to you driving: admission, proximity, and physical evidence.

  • First, your admission to driving is the biggest piece of evidence the state can use against you.  Statements such as “Yeah, I was driving from downtown Fort Worth” or “I was headed home from the bar when I hit that tree” are not going to help you.   Your admission plus any another incriminating fact to operation is going to be enough for the State to proceed with prosecution.  This can be troublesome when your presence at the scene might count as the “other” incriminating fact.  Moreover, the existence of an accident will give the police a reason to contact you, investigate your presence, and even detain you for probable cause of breaching the peace.  These legal detentions may involve pointed questioning without the protection of your Miranda rights.  Do not be pressured into responding that you operated the vehicle in any way.
  • Second, your proximity to the vehicle may be considered in determining operation.  Most of the time, when accidents occur, the police arrive after the drivers have exited their vehicles.  In single-car accidents, your proximity to the vehicle is a strong consideration in determining whether you operated the vehicle.  For example, if you veer off the highway into the median, leave your vehicle, and begin to walk away, law enforcement may be able to establish operation. In multiple-car accidents, other drivers, passengers, or persons nearby may witness your presence at the crash location.  Their statement to the police, whether written or on camera, may be enough to establish probable cause for operation.
  • Third, any physical evidence of your control over or ownership of a vehicle will be used against you in determining whether you operated a motor vehicle while intoxicated.  Police and prosecutors may consider whether a vehicle is registered to you, insured by you, owned by you, or even rented to you, in determining operation.  If you are present at the scene of an accident, there are no other passengers around, the vehicle is registered to you, and you have the keys in your pocket, whether you admit to driving or not, the police could have sufficient probable cause for operation and the state may have sufficient evidence to prosecute.

The state may establish operation by piecing together several different pieces of the puzzle.  Any information, or admission, you provide is just another piece for them to use.

If the prosecutor convinces the jury that you were operating the vehicle, does the State win?

Even if the state can prove operation, they still must prove you were intoxicated WHILE operating the motor vehicle.  As one example, you may have made a run to the local liquor store and on your way back home, run off the road and into a ditch.  You grab your vodka and start walking.  Police find you a mile away from the accident but a fourth of the way through the bottle.  You may be intoxicated now, but that does not mean you were intoxicated at the time of driving.  Distance in location and time along with the amount of alcohol you consumed are calculations an experienced DWI attorney can make to help you fight this arrest.

Learn More About the Operation of a Vehicle in Fort Worth DWI Cases

There are nuances to the laws on the operation of a vehicle in Fort Worth DWI cases. To learn more, call our legal team today.