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Is It Still Drunk Driving If You’re Asleep in a Parked Car?

Updated: Feb 7, 2024 @ 1:40 pm

Less than 1 minute Reading Time: Minutes

While we commonly use the term DWI–driving while intoxicated–to describe the criminal offense of drunk driving in Texas, if you actually read the statute, the word “driving” does not actually appear. Instead, the offense is when a person “is intoxicated while operating a motor vehicle in a public place.” The key word here is “operating,” which is not necessarily the same thing as driving.

The statute does not define what it means to “operate” a motor vehicle. According to the Texas Court of Criminal Appeals, whether a person accused of DWI operated a motor vehicle depends on the “totality of the circumstances” to “demonstrate that the defendant took action to affect the functioning of [their] vehicle in a manner that would enable the vehicle’s use.” And this does not necessarily mean driving.

Fort Bend Man Receives 10-Year Sentence for Felony DWI

For example, many Texas courts have held that a person “operated” a motor vehicle for purposes of DWI even when they were found asleep in their car. Take this recent decision from the Texas First District Court of Appeals here in Houston, Ogunnowo v. State. In this case, the Fort Bend County’s sheriff’s office received a 911 call reporting a single-car accident. The caller told the dispatcher that a BMW SUV had driven over a curb and came to a stop near a fence. The SUV’s engine and lights were still running. Another bystander said the driver appeared to be asleep and slumped over in the driver’s seat.

A sheriff’s deputy arrived at the scene of the accident a short time later. The deputy identified the BMW described by the 911 caller. The vehicle was partially on the sidewalk and partially still on the road. The sole person inside the BMW–the defendant in this case–was asleep in the driver’s seat with his seatbelt still attached.

As the vehicle’s engine was still running, the deputy put the BMW in park and awoke the defendant. The deputy later testified he observed the defendant had slow speech and had the smell of alcohol on his breath. The defendant admitted to the officer that he was on his way home from a baby shower but denied consuming any alcohol. The defendant did not give any reason for why his SUV was partially parked on the sidewalk.

The deputy proceeded to administer a series of field sobriety tests. Based on the defendant’s performance, the deputy placed the defendant under arrest for DWI. The deputy did not request, or seek a warrant for, a chemical test of the defendant’s blood-alcohol content.

Because the defendant had at least two prior DWI convictions, the state charged him in this case with felony DWI. A jury convicted the defendant. The trial court then sentenced the defendant to 10 years in prison, but suspended that sentence in favor of 10 years probation.

On appeal, the defendant said the state failed to prove either element of a DWI, namely that he was intoxicated and operated his vehicle while intoxicated. The First District rejected both claims and affirmed the defendant’s conviction and sentence.

With respect to the evidence of intoxication, the defense challenged the deputy’s administration of the field sobriety tests. Specifically, the defense alleged the deputy did not follow the proper procedures for administering such tests. The First District explained, however, that any failure to follow proper procedures went to the weight and credibility of the evidence. And it was up to the jury to decide to resolve any possible conflicts, which it did here in favor of the state.

As to whether the defendant was “operating” a motor vehicle, the defendant said nobody actually saw him driving the SUV. And there was no evidence he was “acting to operate the vehicle” when the deputy initiated his investigation. But again, the First District said the jury was allowed to infer the defendant’s operation of the SUV from the deputy’s testimony that he found the defendant asleep behind the wheel.

The defendant pointed to a 2009 decision from the Third District Court of Appeals, Texas Department of Public Safety v. Allocca, which held that a trooper lacked probable cause to suspect a defendant of drunk driving after finding him asleep in his vehicle. The First District said that even if it accepted the reasoning of the Allocca decision, the facts here were quite different. In Allocca, officers found the defendant asleep behind the wheel of a car parked inside his employer’s parking lot. Here, the defendant’s vehicle was partially–and illegally–stopped in the middle of the road with the engines and lights still running.

Contact Houston DWI Lawyer Tad Nelson Today

Never assume that just because you are not actively driving your car that you are immune from a potential DWI arrest or conviction. And if you have been charged and need legal advice from a qualified Houston drunk driving attorney, contact the Law Offices of Tad Nelson & Associates today to schedule a free consultation.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

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