Arrested for DWI in Texas When You Weren’t Driving

 Posted on May 05, 2023 in DUI/DWI

We all make mistakes. Sometimes that can include drinking too much and realizing you shouldn't drive. For example, you head out to dinner with friends and have a few beers or glasses of wine. But when you head home, you realize you may not be in the best shape to drive. So, maybe you pull over to the side of the road and decide to sleep it off before continuing home. Or maybe you head out to the parking lot, put the keys in the ignition to turn on the radio, close your eyes, and nap.

If the police show up and decide that you are intoxicated, but you weren't actually driving, can they still arrest you? Unfortunately, they may charge you with DWI. The good news is that an expert in DWI Defense, like Attorney Doug Murphy, may be able to negotiate with the prosecutor or use it in your defense.

What is a DWI in Texas?

You can face a charge for a DWI in Texas if you are "operating a motor vehicle" in a public location while intoxicated. Unfortunately, the Texas statute isn't as clear-cut as it seems. "Intoxicated" in our state isn't always black and white. You're considered "intoxicated" if:

• Your blood alcohol level is over the legal limit of.08%,.04% if you hold a commercial driver's license, on a blood alcohol content (BAC) test, or
• You no longer have the normal use of your physical or mental faculties.

Whether you have the normal use of your mental or physical faculties is a subjective determination. The police could arrest you, mistaking a disability, speech impediment, hearing problem, or other medical issues for intoxication, even with no BAC test or a BAC test under the legal limit. The consequences can be serious. A first conviction for a DWI in Texas can result in up to 180 days in jail, a license suspension, court-imposed fines of up to $3,000, and a mandatory administrative fine of $3,000. You could also end up with an interlock device on your vehicle and have to perform hundreds of hours of community service.

What is "Operating a Motor Vehicle" Under Texas Law?

While most of us would assume that "operating a motor vehicle" means "driving" it, this isn't clearly defined by statute in Texas. The police interpret "operating" as broadly as possible; you don't have to be driving. If you have your keys and you're sitting in the driver's seat, even if you're just listening to the radio, running the a/c, or sleeping, they can arrest you for DWI if they believe you're intoxicated.

There can also be a question about whether you were operating a motor vehicle if the police don't actually see you behind the wheel or aren't sure who was behind the wheel if you had a companion in your car. If the police question you at the hospital after an accident and you're intoxicated when they question you, they might infer that you were drinking. But if you have someone with you and it isn't clear who was driving the car, an expert in DWI Defense like Doug Murphy may be able to use this in your defense.

"Not Driving" as Part of a DWI Defense

It may seem farfetched, but the police sometimes arrest people for DWI even if they aren't driving. As we discussed, if you're intoxicated and behind the wheel of your car, the police may decide that you were "operating" the car and arrest you. Sometimes they may arrest you even if it isn't clear whether you or someone else was driving.

An experienced DWI attorney, like the skilled lawyers at the Murphy & McKinney Law Firm, P.C., can use this uncertainty as part of your defense against the DWI charge. They may be able to raise questions about whether the police arrested the wrong person, or they may be able to use evidence that you were simply sitting behind the wheel with no intention of driving as part of your defense. Either way, your attorney can negotiate with a prosecutor to get charges dismissed or lessened.

You Need an Expert in Texas DWI Defense

You may have a good defense if you're facing a DWI that happened when you weren't driving. Whether you were sleeping behind the wheel or you weren't actually driving the car, a skilled attorney can evaluate your case, negotiate with the state, and use this in your defense. But you must ensure you have an expert in DWI Defense protecting your rights. Attorney Doug Murphy is a Board Certified expert in both DWI Defense and Criminal Defense Law, holding Texas State Board Certifications in two complex specialties. Doug and the skilled team at the Murphy & McKinney Law Firm, P.C. are also well-versed in handling complex DWI defenses and negotiating with prosecutors. Their attorneys have worked on both sides of the aisle, with experience as prosecutors and defense attorneys, so they know how to best approach a good DWI defense for maximum results on your behalf.

Doug is also well respected in the Houston and Texas legal communities and is a sought-after national speaker in DWI and criminal defense law. Doug has served as a past president of the Harris County Criminal Lawyers Association and served two terms on the board of directors. He has also served as the co-chair of the DWI Committee for the Texas Criminal Lawyers Association. Doug is the Dean of the National College for DUI Defense operated at Harvard's law school. Doug has also received the Sharon Levine Unsung Hero Award from the Harris County Criminal Lawyers Association. He received this award for exposing flaws in the Houston Police Department's breath alcohol testing vans, leading to their decommissioning.

Best Lawyers in America from U.S. News & World Report named Doug a "Lawyer of the Year" for Houston DWI defense in 2021 and again in 2023. Doug and the experienced team at the Murphy & McKinney Law Firm, P.C. have been protecting the rights of Texans like you charged with DWI for years. Find out why the media calls him "the drinking driver's best friend." Call the Murphy & McKinney Law Firm, P.C. at 713-229-8333 or contact them online to schedule your consultation.