Typically, when a person is arrested for DWI, he or she had been driving a vehicle and the police officer witnessed him or her driving the same vehicle. There are times, however -- beyond comprehension -- when an officer may arrest a person for DWI in Harris County when that person was not driving the vehicle -- in fact, that person may not have even been behind the wheel. If no one saw your driving, it may indeed help your DWI case in Harris County, TX. Without a "wheel witness," proving someone "operated" a motor vehicle becomes a case of circumstantial evidence.
Doug Murphy, Board Certified in DWI law and Board Certified in criminal law -- one of only two lawyers in Texas to hold this distinction -- can help you fight a DWI charge regardless if you were seen driving the vehicle or not. But in the case you were not driving, your chances are improved. But let's be clear, in some circumstances -- especially when an attorney is not as well experienced and knowledgeable of the law -- you can still be convicted. There are ways for the prosecution to prove a DWI to get you convicted. So, the problem here is a false assumption that you are in the clear and any attorney can get you off. This assumption can lead you into a plea deal type situation where you still end up with a criminal record. But not with Doug Murphy. He is fearless. He is strategic. And he will help you keep your name clean.
Can you be arrested and eventually convicted of a DWI in Texas even when you were not driving?
Yes. It seems crazy but it is true. In order to be convicted of DWI in Texas, there are three main elements that must be proven beyond a reasonable doubt:
- You were illegally intoxicated.
- You were in a public place.
- You were operating a motor vehicle (driving is not the same as "operating").
You can be considered illegally intoxicated under two conditions:
- Your breath or blood alcohol content (BAC) level is 0.08% or higher, or
- You did not have the normal use of either your mental and/or physical faculties.
In the first scenario, you would have provided either a breath or blood sample. In the latter scenario, the circumstances -- like slurred speech or an inability to walk in a straight line -- coupled with some amount of alcohol or drugs and no other present mental or physical reasons for the behavior would be sufficient in many cases to prove illegal intoxication.
To prove you were illegally intoxicated while driving in a public place, you only need to be driving in a place that is not necessarily private. Public here, however, includes property that is otherwise private except it is open to the public. For instance, a grocery store parking lot or a private road leading to your house along with several other houses along the same road is not private space but public space, according to the statutory meaning.
Operating a Motor Vehicle
A motor vehicle is defined by statute and means any “device in, on, or by which a person or property is or may be transported or drawn on a highway…” This, of course, includes anything from a motorcycle to a truck to a passenger car to a bike, among other examples.
Operating a motor vehicle, however, is not defined by statute. Operating, according to case law, means that you cause the vehicle to function in a manner that enables it to be used. This kind of definition or meaning can be interpreted broadly. And, thus, the problem for persons who were not actually driving the vehicle at the time the police arrived but due to circumstances could be presumed to have been enabling the vehicle for use. Whether you were operating is a fact issue to be determined by a jury.
Circumstances in Harris County When Police Arrest You for DWI but Did Not See You Driving
When a DWI offense is charged, it is usually after a driver was stopped by the police for a traffic violation. The police officer conducts a DWI investigation, and then an arrest follows. Here, a DWI does not originate from a traffic violation, something else made it happen.
Normally, under most scenarios -- especially misdemeanors -- a police officer cannot arrest a person for a crime the officer did not see the person commit. There is one exception: an officer can make reasonable inferences based on the situation that a crime had been committed. This is true in DWI cases as well.
Some DWI scenarios where you could find yourself arrested for a DWI without the police officer actually seeing you drive a vehicle include:
- The police officer either sees you in the driver's seat of a vehicle or someone called about a person sleeping in a vehicle, so the officer conducts a wellness check. A wellness check is permitted and allows the officer to check on you to make sure you are well.
- Someone calls the police to give them a heads-up about someone driving erratically. The police follow-up by searching for the vehicle. They find the vehicle in some location with you either in or outside the car.
- There is an auto accident, of which you are a part. The police go to the hospital to question you and/or other witnesses and request a blood test that eventually returns a BAC of at least 0.08%.
In all three of the above cases, the police do not personally see the person drive a vehicle, but an arrest can be made if you show signs of illegal intoxication and there are facts that can support you were or had been operating the vehicle while illegally intoxicated.
Facts that can help police determine if you were driving the vehicle include things like:
- You admit driving the vehicle.
- A witness identified you as the driver.
- Keys are in the ignition and you are in the driver's seat -- whether awake or not.
Examples of Defending DWI Cases when Texas Police Did Not See You Driving
To better understand how the police not seeing you actually drive the vehicle can help your case, here are a couple of scenarios.
You do not admit driving (in fact, no one admits driving).
Maybe there was an accident with either another vehicle or a one-car accident. Whichever is the case, there may be more than one person present and no one -- you in particular -- admits to driving the vehicle. The police officer will be able to determine the owner of the vehicle, but if no one admits to driving, then probable cause to arrest you may not exist.
There is an eyewitness who can testify you were the driver.
The police welcome the public's participation in fighting crime, and this includes drunk driving. If someone saw you driving erratically or swerving all over the place, that person may take down the make and model of your vehicle and the license plate number and then call the police. The police may begin an investigation by looking for the vehicle. If that investigation leads to your home or the owner of the vehicle's home, there is little probable cause an officer can use to arrest you even if you smell of alcohol. The main reason: you could have started drinking since you returned home.
You were found sleeping in your vehicle.
If you were sleeping in your vehicle and the keys are in the ignition and you are found on the side of the road or on a road, then there may be cause to arrest you. But this changes if you were in a parking lot and there is no proof you drove anywhere. It also changes if you were in the backseat and the keys are not in the ignition.
In all these scenarios, time will be an important factor, too. Alcohol needs time to process in your body and depending how much alcohol you consumed, whether or not you ate food along with the alcohol, how fast you drank the alcohol, and when you drank it will determine your BAC level. But your BAC level will vary according to when the test is taken -- so timing matters greatly. You may not have been illegally intoxicated at the time you allegedly drove the vehicle, but by the time the police found you -- a time when you were not actually driving the vehicle, you are intoxicated. Only a skilled attorney who understands how this works and has a deep knowledge of breath and blood test analysis and results can understand how this works.
Contact an Experienced, Resourceful DWI Attorney in Houston TX
If you have been arrested for a DWI in Houston TX or anywhere in the greater metropolitan area, Doug Murphy can provide you with aggressive, smart legal representation. He is known among his peers as a fearless fighter and an astute defense strategist. Contact Doug Murphy Law Firm, P.C. either online or at (713) 229-8333 to discuss your case. He will provide an honest and thoughtful review and inform you of your best options.