In what seems like the answer to some bar night trivia, the answer to the question, “Can I get a DWI even if I wasn’t driving?” is “Yes.” “Driving While Intoxicated” sounds like it should be self-explanatory, right? Well, unfortunately, a lot of people have found out the hard way that the “driving while” part of the phrase may not be as literal as it seems.
What the Law Actually Says about DWI
Section 10 of the Texas Penal Code criminalizes the operation of a motor vehicle in a public space by an intoxicated person. It’s important to note here that although we call it “Driving While Intoxicated,” you won’t find the word “drive” anywhere in this particular statute. The words you will find, though, are “operate,” “operating,” “operated,” etc. – and it’s these words that get a lot of people into a lot more trouble than they expected.
The legislature doesn’t define what “operate” means in this law, but the courts have since ruled that it means when someone has control over a motor vehicle. This means that police are concerned with whether or not you are in control of a vehicle while you are drunk, whether you’re driving it or not. As a consequence, people can be arrested for DWI even though they were not driving at the time of an officer’s investigation or arrest.
This means that if you are intoxicated, you can be arrested for DWI in the following scenarios:
- Sitting in the driver’s seat with your keys in the ignition
- Sleeping in the driver’s seat
- Possessing keys to the vehicle you are in
Again, the primary consideration is whether or not you were able to control the vehicle while you were intoxicated, which may be creatively interpreted in a variety of ways.
Police will also check your car for signs that it was recently running, such as the warmth of your hood or muffler. Even if you were just running the engine to use the heater or keep your battery from dying, the police may have enough probable cause to arrest you for DWI.
Public Space vs. Private Property
Key to all DWI charges is where the motor vehicle operator was found by law enforcement. If the DWI occurred in a public space, then a conviction is possible; if it occurred on private property, then conviction is unlikely.
Understanding the difference between public space and private property in this context is important. In a DWI case, private property can be considered a public space if it is accessible to the public. An often-cited example is a shopping center parking lot – although this is privately owned property, it is open to the general public. Other public spaces may be ungated private roads or any other private property that is open to the public.
When a DWI arrest occurs and it can be argued that it happened on private property that’s not open to the public, then it may be possible to defeat the charge. That said, the police can still arrest you if they believe you are a threat to yourself or others, even if you’re on your own property. So, as always, it’s best to avoid drinking and driving altogether.