DWI Arrests Involving Off-Road Vehicles and ATVs

Off-road vehicles and all-terrain vehicles known as ATVs are fun. Their manufacturers design them, and owners buy them, for the dream of taking them across gorgeous lands to enjoy remote private vistas. Few things beat an off-road adventure for an exciting, invigorating, and relaxing getaway.

Texas Parks & Wildlife even has an Off-Highway Vehicle Program promoting off-roading. The Texas legislature created the program in 2005 to identify and develop additional safe and legal off-roading opportunities on public lands and private lands dedicated to the program. Off-roaders buy a vehicle decal to access those lands, the funding from which goes to improve additional public and private off-roading sites.

Some might think that an off-road adventure removes the law's constraints so that one may even imbibe and drive without the risk of a DWI. That's not so. On the contrary, police, and prosecutors apply DWI laws to off-road vehicles and ATVs, even when driven only on public recreational or private lands, as explained further below. First, though, consider what an off-road vehicle is.

Off-Road-Vehicle Definitions

Definitions of and distinctions between off-road vehicles and all-terrain vehicles or ATVs vary, depending on who you ask and why you ask. The national Recreational Off-Highway Vehicle Association explains the differences this way. Like Texas Parks & Wildlife, the Association prefers the verbiage off-highway rather than off-road vehicle because a lot of recreational use of vehicles across lands follows little-used roads. In any case, off-road vehicles tend to have steering wheels and foot-pedal accelerator and brake controls, while all-terrain vehicles tend toward handlebars with a thumb-lever throttle and hand-grip brakes. We'll see below, though, that the distinction likely does not matter when the question is applying DWI laws.

Some may alternatively look at the difference between a street-legal vehicle, which can be legally operated on public highways, and an off-road vehicle that lacks the signals, controls, or other features for which the highway code calls. That distinction is important for vehicle licensing, highway citations for unlicensed vehicles, and motor-vehicle insurance requirements and coverages. But again, the distinction is one without a difference when the question is applied to DWI laws. The point is that the vehicle's particular design does not especially matter to the reach of the DWI laws, as the next section explains.

Motor Vehicles Under the DWI Statute

Don't expect success defending a DWI charge by arguing that your vehicle was only off-road or an ATV and not a "motor vehicle" within the DWI statute. Texas Penal Code Section 49.04(a) defines a DWI violation as when "the person is intoxicated while operating a motor vehicle in a public place." The statute's phrase "motor vehicle" might sound to some as if it refers to a street-legal vehicle, one whose owner operates it legally or primarily on the public highways, and thus not an off-road vehicle or ATV.

Texas law, though, doesn't define a "motor vehicle" that narrowly. Texas Penal Code Section 32.34 defines a "motor vehicle" as "a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks." Prosecutors and police interpret this definition to encompass not only the cars, cross-overs, trucks, and buses one sees on the highways, but also off-road vehicles and ATVs.

In adopting its DWI legislation, the Texas legislature was apparently not so concerned with the type of vehicle as with the intoxicated operation of any motor vehicle. Thus, the only significant qualifier in the DWI statute is that the vehicle is a "motor" vehicle. Creative police and prosecutors have argued the motor-vehicle definition's application to bicycle DWI, although that argument should clearly fail. Other than having a motor and being a "vehicle," the form of vehicle counts less than its intoxicated operation.

The Public-Place Requirement

The Texas DWI statute does require that the offense of driving a motor vehicle while in an intoxicated state occur in a "public place." The public-place requirement, though, does not rule out off-road-vehicle or ATV DWI offenses. True, most DWI arrests have to do with highway driving. But Texas's DWI law also reaches driving on at least some off-road public and even private lands. Texas's appellate courts have interpreted the DWI statute's public-place requirement to include private lands "to which the public has access."

The question of what is a place "to which the public has access" is why DWI defendants facing that issue need experienced legal counsel. DWI defense lawyer Doug Murphy wants you to know your rights. You should have legal representation for any DWI charge but especially for one that involves a question over the DWI arrest's location.

Texas's courts have made clear that who owns the land is not the deciding factor, whether public or private lands. Drivers can commit DWI violations on publicly or privately owned land. Because the definition is public access to the land, the courts will look at a range of factors, including how, if at all, vehicles use the land, whether the land has drives and parking areas, and what the owner expects and permits. Signs, gates, and fences could all make a difference—as could expert advocacy from DWI attorney Doug Murphy.

Off-Road Enforcement Actions

One may wonder how people get arrested for an off-road DWI. Law enforcement officials may, for environmental or other reasons, close public lands to off-roaders, arresting and charging trespassers. Some states even fund special police off-road equipment for enforcement actions at well-known off-road locations. That off-roader you see in the distance may just be the police. Don't think that just because you've taken your off-road vehicle well off the public highways that you are beyond law enforcement's reach.

Policing of off-road sites may sound like law enforcement overreach, but legitimate safety and other public concerns can arise at off-road sites. Off-roaders know the human risks. Problems at popular off-road locations can include not just reckless driving fueled by alcohol and drugs, degradation of the lands, and guns, drugs, or other contraband, but also violence against persons. Even the off-roaders may call for law enforcement.

In the context of such off-road lawlessness, an off-road DWI may seem a small concern, but DWIs are not small to the off-road officers who keep watch. Law enforcement and emergency responders concern themselves with dangers and injuries well off the public highways. Hundreds of persons die annually in the U.S. in ATV accidents. Indeed, off-road injuries to which emergency personnel must respond may be the cause of a DWI arrest, as one story of an allegedly intoxicated operator's ATV crash causing injuries sadly illustrates. Police will not ignore an off-road-vehicle driver's apparent drunkenness when responding to the scene of an off-road accident, injury, or other crime.

DWI Arrests on Private Land

You may wonder why else, other than for serious injuries or in off-road-vehicle enforcement actions, police would come onto private land to observe suspected off-road DWI and make an off-road DWI arrest in the first place. Private landowners and others using public and private lands may call the police to those lands for various reasons, when police may observe intoxicated off-road-vehicle or ATV operation. Those reasons may include not just violence or trespassing and injuries but also personal property disputes, vehicle breakdowns, and other emergencies.

When police lawfully enter private land in response to an emergency call or on probable cause of ongoing criminal activity, they may generally use their observations as evidence to support a DWI charge if the vehicle's operation was in what qualifies as a public place. Police also surveil some private lands specifically for DWI violations, especially common locations for DWI arrests around drinking hotspots. Off-road vehicles and ATVs are not the transportation of choice at most of those drinking hotspots, but they might be popular at outdoor concert venues, fairgrounds, fishing and hunting events, and the like.

Can Privacy Rights Protect Against an Off-Road DWI?

Privacy rights may offer some protection against an off-road DWI arrest. The Constitution's Fourth Amendment, extending to Texas state officials under the Fourteenth Amendment, prohibits officers from unreasonable searches and seizures. That right would ordinarily prohibit an officer from entering private lands to observe intoxicated driving and make a DWI arrest. Not that anyone would recommend it, but you may be able to drink and drive with impunity around your ranch's back forty.

The scope of the Fourth and Fourteenth Amendment rights, though, is only as to places where one has a reasonable expectation of privacy. Recall the above "public place" discussion. The private land on which you may hope to drink while operating off-road vehicles and ATVs, again not a wise idea, must be truly private. If, instead, the public has access to those private lands, then in general, so too would the police have access to arrest for a DWI on those publicly accessible lands.

Indeed, private lands like mined-out gravel pits, abandoned race tracks, or fairgrounds may make great places for off-road-vehicle recreation. But those places, though privately owned, may be publicly accessible, depending on their particular use, nature, and history. Depending on those circumstances, you may not have a reasonable expectation of privacy there, which is another close question for DWI defense attorney Doug Murphy to address.

Avoiding Off-Road-DWI Violations

The best way to avoid the risk of an off-road DWI arrest is not to operate an off-road vehicle or ATV while intoxicated. The Texas legislature extended the definition of a motor vehicle to include motorized off-road transportation for safety reasons. The Texas courts interpreted the definition of a DWI-safe public place to include publicly accessible private lands, supporting the same safety policy. The admonition not to drink and drive could apply equally to operating off-road vehicles and ATVs.

If you have imbibed, though, and have operated an off-road vehicle or ATV, then promptly park the vehicle in a place where it presents no hazard to others. Turn off the vehicle, exit the vehicle, and find a safe place to sleep it off or call a family member or friend. Do not remain in your off-road vehicle or on your ATV while intoxicated. Texas DWI law does not require your intent to drive somewhere. Instead, you need only "exert personal effort to control" the off-road vehicle or ATV for a DWI arrest.

Don't Evade Arrest in an Off-Road Vehicle or ATV

One last caution: if an officer signals you to stop your off-road vehicle or ATV on suspicion of a DWI or for any other potential reason, then do not evade arrest, fleeing in your off-road vehicle, on your ATV, or on foot or by other means. Texas Penal Code Section 38.034(a) defines the crime of evading arrest as when one "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Evading arrest is a Texas misdemeanor unless one pairs it with a DWI charge, when it can turn into a felony with severe penalties.

Private land is not a sanctuary from arrest when police follow a suspect onto the private land. And an off-road vehicle or ATV is not safe passage to reach private land or hide within it. Indeed, the method of one's flight can increase the seriousness of an evading arrest charge. Texas Penal Code Section 38.034 defines flight on foot as a misdemeanor, while flight in a vehicle turns that misdemeanor into a third-degree felony punishable by two to twenty years in jail and fines of up to $10,000. Flight causing injury also enhances the penalty risk.

Off-road-vehicle and ATV operators trying to avoid a DWI arrest should also not resist arrest, which Texas Penal Code Section 38.03 defines as a separate crime from evading arrest. In simplest terms, "evading arrest" involves flight, while "resisting arrest" involves force.

If your DWI case includes charges of evading or resisting arrest, then you need the representation of DWI defense lawyer Doug Murphy, because those charges make successfully defending a DWI charge significantly more difficult and complex. The intoxication itself is not a defense to evading or resisting charges, but the detention itself must be lawful, an element that skilled counsel may challenge on the right facts.

Contact Our Harris County ATV DWI Attorney

If you face an off-road-vehicle or ATV DWI charge, then retain Houston DWI Lawyer of the Year Doug Murphy to aggressively defend the charge in the ways suggested above and in other effective ways. Know your DWI rights and the rights you have to minimize the negative impact of a DWI arrest. DWI lawyer Doug Murphy preserves and enforces your rights.

As a Board Certified DWI defense lawyer and one of only two Texas lawyers holding both DWI Board Certification and Criminal Law Board Certification, Doug Murphy has the experience needed to aggressively defend off-road-vehicle and ATV DWI charges. Doug Murphy can also help you defend related charges like trespassing or disorderly conduct while helping you manage other collateral consequences of a DWI arrest. Contact Murphy & McKinney Law Firm, P.C. online or at 713-229-8333 to discuss your case today. Trust Texas DWI attorney Doug Murphy with your DWI defense.