It seems like a silly question, right?  DWI stands for Driving While Intoxicated.  How could you possibly get charged for DWI without actually driving a vehicle?  It turns out that in Texas it happens all the time.

The key to understanding how lies in how the legislature wrote the law for DWI.  It may come as a surprise to learn that the word “drive” is not mentioned at all.  Section 49.04(a) of the Texas Penal Code specifically requires that to convict someone for a DWI, the government has to prove that the accused “operated” a motor vehicle in a public place while intoxicated.  Defense attorneys regularly argue with judges and prosecutors about what “operating a vehicle” actually means.

Back in 1995, however, the Texas Criminal Court of Appeals defined the word “operate” in a case involving automobile theft. A man was charged after getting into and trying to steal a truck, but the truck wouldn’t move because it needed time to warm up first.  The Court ultimately decided that to determine whether someone “operated” a vehicle, we have to see if “the defendant took action to affect the functioning of [the] vehicle that would enable the vehicle’s use.”

Under this definition, there remain a number of different scenarios where a driver could end up accused of and even convicted for a DWI, even though they aren’t actually physically driving or moving the vehicle in any other manner.

These include the following:

*Sleeping in your car with the keys in the ignition

*Starting your car to use the heater or air conditioner

*Listening to the radio

To answer the original question, you actually can be charged with a DWI in Texas even though you may not be driving.

Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995)

Thank you for visiting the Collin Evan’s blog, a Houston criminal defense lawyer. We write to inform locals about law changes, current news and events.