DWI Asleep & Parked in Your Vehicle

Posted on August 30, 2018 in Uncategorized


You decide you have had too much, and you feel the right thing to do is pull over and sleep it off. Is this a DWI? According to a Tarrant County judge in a bench trial in case number 1366316, decided on February 12, 2015- yes it is. Do I respectfully disagree with the decision? Yes.

Here are the facts: my guy (Mr. "H") was asleep in his legally parked car at a QuikTrip in Keller, Texas. No one saw him drive. No one called the police on him. The QuikTrip attendant had no idea as to how long he had been there, but it had been "a while." The seat was in recline with Mr. H fast asleep. After waking him up, the police interrogation went like this:

Mr. H: "I personally think I did the best thing."
Cop: "What's the best thing?"
Mr. H: "Where I'm at right now."
Cop: "Which is what?"
Mr. H: "Well, it damn sure ain't drinking, damn sure ain't pulling somebody over and hitting ‘em head on collision, right? You're really going to take me to jail for DWI?"

In Texas, DWI stands for intoxication "while operating a motor vehicle." Funny thing is, the Texas Penal Code does not define "operate a motor vehicle"- the juries and judge get to decide. The Court of Criminal Appeals (highest Texas criminal court) has laid out the parameters of the definition in Denton v. State (911 S.W.2d 388): "The totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." There are a few cases where the appellate courts use common sense and hold the following:

Texas DPS v. Allocca (301 S.W.3d 364, Tex. App. -Austin 2009):
Asleep with the seat in recline and vehicle in park although running is not operation

Murray v. State (07-13-00356-CR, Tex. App. – Amarillo 2014):
Asleep, truck parked off the roadway although running with no evidence as to how long the driver was there is not operation

The issue of admission to the act of operating a motor vehicle is a legal one. Under corpus delecti, the law requires additional evidence beyond the defendant's admission. This is a basic safeguard in our law. This prevents a conviction based on accusation alone or a confession. The premise is to prevent a false conviction based on a false accusation, forced confession or false confession. Whether or not the admission is true is not sufficient in and of itself to provide the corpus or "all" of the evidence. There must be more. A driver, such as Mr. H, cannot legally provide all the evidence to his own conviction (here the issue of operation).

So what is the big picture? Napoleon once remarked, "In politics stupidity is not a handicap." Gaining as many DWI convictions as possible is good for campaign statistics to pander to the "tough on crime" voters and insatiable members of MADD (Mothers Against Drunk Drivers who are influential in drafting DWI legislation). It makes no logical sense to convict someone of DWI when the evidence is a parked car showing no evidence of intent for movement (e.g. flickering brake lights, vehicle in gear). Is the State of Texas so desperate for the $3-6k DWI surcharges that accompany each DWI conviction, that it is willing to convict people who are not even legally operating their vehicle? There are currently 1.3 million Texas drivers who do not have valid insurance because they are a part of the 60% who can't afford the $1.7 billion Texas DPS surcharge.

Sure, in a perfect world no one would drive while intoxicated. The argument that one should not drive while intoxicated to begin with does not negate that is responsible
and logical to pull over in a safe place and sleep it off when one finds one's self intoxicated. To do otherwise, is to risk harm to yourself and others. Shame on the society which would rather argue semantics for financial and statistical gain over being concerned about others' welfare. A simple fix since the law is not defined?

Operation should be: "causing a vehicle to function in the manner in which it was intended to function." Who buys a vehicle to use as a motel room? If the law is not fixed, I guess every RV parked at Nascar or a camping ground better be concerned. It is time for some common sense in our court system when it comes to DWI. Long overdue.

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