Does A Person Have to See Me Driving Drunk Before I Can Get a DWI?

Texas law defines driving while intoxicated (DWI) as “operating a motor vehicle in a public place” while under the influence of alcohol or another controlled substance.

  • But if a police officer does not personally witness you driving while drunk, can you still be charged with DWI?
  • Or to put the question a different way, does the prosecution need to produce any witnesses who personally witnessed the alleged drunk driving?

The answer to these questions is “no.”

The district attorney does not have to produce any eyewitnesses who saw you driving your vehicle while intoxicated. For that matter, the state does not even have to prove you were actually driving. The DWI law only requires proof that you were “operating” a motor vehicle, which actually encompasses a broader range of activity than driving. For instance, if you were simply sitting behind the wheel of your parked car with the engine running, that is usually sufficient to prove you were “operating” the vehicle.

Texas Man Receives 40 Years Prison Sentence

Admitted Smoking Synthetic Marijuana While Behind the Wheel

A recent case from the Texas 11th District Court of Appeals, Gameros v. State, provides a useful illustration. In this case, a sheriff’s deputy was on patrol one evening and observed a parked vehicle with its engine running on the side of the road. The officer found a man–the defendant–alone in the vehicle and laying back in the driver’s seat, appearing to drift in-and-out of consciousness.

The defendant volunteered that he had been smoking synthetic marijuana. The deputy then asked the defendant to exit his vehicle before conducting a frisk for weapons. A Department of Public Safety trooper later arrived and conducted field sobriety tests of the defendant. During this encounter, the defendant again admitted to smoking synthetic marijuana–and when asked to rate his level of intoxication on a 10-point scale replied it was “about a five, maybe a six.”

Prosecutors subsequently charged the defendant with third-degree felony DWI (based on his prior drunk driving record). A jury found the defendant guilty. The trial court sentenced the defendant to 40 years in prison.

On appeal, the defendant argued there was insufficient evidence to prove he was operating a motor vehicle at the time of his arrest. The 11th District rejected that and other arguments and affirmed the defendant’s conviction and sentence. With respect to the sufficiency of the evidence, the appellate court noted that the defendant’s own “confession” placed him behind the wheel of the vehicle while drunk. Even excluding those statements, the Court of Appeals said the jury could still infer the defendant was operating the vehicle based on the fact that he was the only person in the vehicle and sitting behind the wheel with the engine turned on.

Arrested for Drunk Driving in Texas?

Contact Houston Felony DWI Attorney Tad Nelson Today!

We can never say this enough: Never volunteer information to the police, especially if you have been drinking or using drugs. Your own statements are often enough to send you to prison. That is why you should always remember that you have the right to remain silent, as well as the right to consult with a qualified Houston felony drunk driving lawyer. Contact Attorney Tad A. Nelson today at 713-489-7373 to get started on your case.