Can I Sleep the Alcohol Off In My Vehicle?

Texas has some of the toughest DWI laws in the country. In fact, it is possible to face charges for DWI even if you weren't driving at all. As a result, you'll want to think twice before sleeping the alcohol off in the car. If the police think that you are “operating” the vehicle in any way, you could be arrested for DWI.

Driving While Intoxicated in Texas

In Texas, it is illegal to be “intoxicated while operating a motor vehicle in a public place.” When you are charged with DWI, the state must prove at least two things:

  1. You were intoxicated
  2. While operating a motor vehicle

Interestingly enough, state law has specific definitions for “intoxicated,” “motor vehicle,” and “public place.” Operating, however, is not defined, at all. The legislature left that interpretation open for a jury or judge to decide based upon the facts of the case. Generally speaking, it is a much wiser and safer decision to sleep it off if a person gets behind the wheel and does not feel safe continuing to drive. Other states have defined "safe havens" to protect those who realize they should not continue driving, but Texas does not have those legal protections built into the Texas DWI law. That does not prevent, however, Houston DWI attorney Doug Murphy from being able to successfully defend a DWI when a person who made the right decision to sleep it off.


There are two ways you can be “intoxicated” for purposes of Texas DWI law.

The first is if your blood alcohol concentration (BAC) is above the legal limit. For most drivers, this means having a BAC above .08 percent. Commercial drivers and kids under the age of 21 are subject to even lower thresholds.

The second is if you “do not have the normal use of mental or physical faculties” because you have consumed drugs or alcohol. This type of intoxication does not require you to have an elevated BAC.

The state only has to prove that you were intoxicated by one of the standards.

Motor Vehicle

In Texas, a motor vehicle is defined as any “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.” So, motor vehicles include cars, trucks, buses, tractors, motorcycles, moped and even bicycles. You can get a DWI if you are operating a vehicle that can transport you from one place to another without the aid of tracks or rails.

Courts Have Defined What It Means to Operate a Car

When a term or phrase is not explicitly defined in a law, courts have the responsibility of figuring out what it means. Since “operate” is not defined in Texas DWI law, courts have stepped in to offer guidance. It should not be surprising that courts have given the term “operate” a fairly broad definition.

You can be considered to have been operating a vehicle if there is evidence to show that you did something “to affect the functioning of [the] vehicle in a manner that would enable the vehicle's use.” As you can see, this definition can involve much more than driving.

Behaviors to Avoid If You Are Intoxicated

It is important to know that you can get a DWI even if your car wasn't moving. In Texas, operating a car simply means that you “exert personal effort” to control the vehicle. This is an incredibly broad definition. Certain behaviors are more likely than others to result in DWI charges.

Try to avoid doing any of these things if you are intoxicated:

  • Putting the key in the ignition and sitting behind the wheel
  • Turning the car on to heat or cool the passenger compartment
  • Closing your eyes while sitting behind the wheel
  • Putting your seatbelt on
  • Pulling over and parking on the side of the road
  • Parking anywhere other than a designated parking spot, and
  • Putting the key in the ignition to listen to the radio.

All of these behaviors could be considered “operating” the car. The fact that you are trying to stay warm, sleep off your intoxication, or wait until it is safe to drive are irrelevant. As long as there is proof to establish that you've manipulated the vehicle in some way that enables its use, you can be arrested for DWI.

Circumstances Must Be Considered

When courts decided what “operation” should mean, they did add a bit of clarification. Whether or not you were operating a car in violation of state DWI law is a subjective question of fact. This means that the court will have to consider the specific factors and circumstances of your case before deciding if you were operating the vehicle.

Since the circumstances of your case are important, there are ways to reduce the risk of getting a DWI for sleeping it off in the car. Here are steps you can take to make it clear that you are not affecting the car's functionality in a way that would enable it to drive:

  • Sleep in the back seat of the vehicle
  • Do not put the keys anywhere near the ignition
  • Keeping the keys in the truck, glove box, or back seat
  • Recline your seat so that it would be impossible to drive, and
  • Parking the car in a designated spot.

These behaviors should not reflect that you are attempting to exert control over the car. You must manipulate the car in some way to “operate” it.

Check Your Parking

Police are more likely to suspect that you are intoxicated if you are pulled over the side of the road or parked anywhere other than a designated spot. If an officer sees your car parked in several spots, parked perpendicular to painted lines, or on the side of the road, they may have enough to question you for DWI.

Consequences of DWI in Texas

The penalties for DWI are the same if you were driving or sleeping in a parking lot. The consequences of your specific DWI will depend on how many prior DWIs you have. Penalties becoming increasingly harsh with each additional DWI.

First DWI: The first time you are arrested for DWI in Texas you will be charged with a Class B Misdemeanor. Penalties include:

  • Imprisonment: 72 hours to 180 days in jail
  • License suspension: 90 days to one year, and/or
  • Fines: Maximum of $2,000.

Second DWI: The second time you are arrested for DWI in Texas you will be charged with a Class A Misdemeanor. Penalties include:

  • Imprisonment: 30 days to one year in jail
  • License suspension: 180 days to two years, and/or
  • Fines: Maximum of $10,000.

Third DWI: The third time you are arrested for DWI in Texas you will be charged with a Third Degree Felony. Penalties include:

  • Imprisonment: two to ten years in prison (mandatory 10-day jail sentence)
  • License suspension: 180 days to two years, and/or
  • Fines: Maximum of $10,000.

All DWIs are also punishable by a term of probation. Probation is a form of supervised release with specific terms. These may include things like community service hours or drug and/or alcohol counseling.

Aggravated DWI: The consequences of driving while intoxicated can be more severe if there are certain aggravating factors present. Most aggravated cases will result in Felony DWI charges. Aggravating factors include:

  • DWI with BAC of .15 percent or higher
  • DWI with open container
  • DWI with minor in the vehicle
  • DWI causing property damage
  • DWI causing bodily injury, and
  • DWI causing death.

There are also harsh administrative penalties for DWI in Texas. These penalties can include license suspension, DWI intervention programs, excessive fees, and ignition interlock device requirements.

Defending DWI Charges When You Were Sleeping It Off

The state has the burden of proving that you have violated state DWI laws. In fact, the state has to prove that you are guilty beyond a reasonable doubt. This can be difficult if you were actively trying to stay safe by sleeping it off in the car. Hiring an experienced Houston DWI attorney to handle your case will help to strengthen your defense.

At the Doug Murphy Law Firm, P.C., our DWI attorneys know how to handle complex DWI matters. We will thoroughly investigate your case and determine the best strategy for your defense. We will identify where the state's case against you is weak and attack. These attacks will make it incredibly difficult for the state to build a solid case. This will help to secure a plea bargain or get the charges dropped altogether.

Defenses to DWI can include:

  • You were not intoxicated
  • You were not operating a motor vehicle
  • You were not on public property
  • You have been falsely accused
  • There is insufficient evidence to prove your guilt, or
  • The state has violated your Constitutional rights.

Contact us today to learn more about how we can help you fight DWI charges in Texas.

Houston Criminal DWI Attorneys

Have you been arrested for DWI after trying to sober up in the car? Were you simply trying to be safe? You have the right to fight those charges, and Houston DWI attorney Doug Murphy can help. Doug Murphy is a Certified DWI attorney with more than 18 years of experience. He has handled incredibly complex DWI cases all across Texas. His experience and insight give you the best shot at winning your DWI case. Call the Doug Murphy Law Firm, P.C. today to schedule your free consultation.

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