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Case Law Changes Definition of Operating for DWI


Recent case law indicates the shift in driving while intoxicated away from those not viewed driving or operating the vehicle by an officer or a civilian who can identify the driver.

Case Law

Recent case law from the Hill Country of Texas has come down from the Court of Appeals on the sufficiency of the verdict in a DWI case dealing specifically with the issue of operating. This case law, argued by Mark Lassiter of Dallas, is an appeal from a conviction for a DWI for an individual who was found asleep in a parked car with the engine running. The Court of Criminal Appeals found that without evidence of the individual having operated the vehicle, the evidence was insufficient and the verdict was overturned.

Definition of Operating

There is no legal definition for operating in the penal code. Most people will be surprised by this when confronted with it in jury selection, the first place this crucial topic must be broached in trial. In a jury charge, the judge will not provide a definition of operating. The jury will have to make that decision individually or as a whole to reach a verdict. By assumption it would be easier for a jury to come to a consensus that they can not define operating but the facts presented do not reach the point of creating a definition for the State. Many people commonly associate DWI with driving, not with operating. It is considered operating a motor vehicle in order to encompass situations where the car was off but an intoxicated person put it in neutral and caused the car to move. It is also to cover situations where a person is in the flow of traffic, asleep from intoxication, with the car in drive and the foot on the brake. But the legislature has failed to define operating. It is clear that defining the word would cause a slippery slope of possible criminal actions, which will be addressed in a later section of this guide.

Application in Trial

The first point at which to bring up the issue of operating would be during jury selection. A motion to suppress may not be argued on the elements, however courts have yet to address if this current trend of case law would open the door to argue the probable cause for arrest of a DWI with comparable facts. As most of these cases are from a 911 caller or community care taking function, a motion to suppress would be a worthwhile exploration to nail the officer to a set of facts that can not be altered at a later trial for fear of impeachment. As prosecutors tend to coach officers on the specific topics they need them to be sure on, they would not be able to coach to repair any damage that is useful in the future trial. If a motion to suppress is not pursued, it is an exercise in futility to present the issue to the prosecutor in negotiations unless you are in a county that can reduce a DWI and your client is willing to take that deal. The majority of counties in Texas instruct their prosecutors that they are not to dismiss a DWI under any circumstances. See my other blogs for information concerning this policy and its effect on the purpose of the law. Jury selection is the first truly relevant place to address operating. Tell the jury that there is no definition and see if they will proceed to engage in a discussion amongst themselves to define it. Take care to note the people who indicate that any presence in a car or any potential to operate a car equals a DWI. During cross examination, it is important to draw out facts such as the location of the car, whether the gear is in drive or park, and the condition of the driver. Small factors such as the seat reclined can help boost the indication that the person is not currently operating the vehicle. It is important to determine the location of the car. Being in the flow of traffic or in a location that can disrupt or put traffic in risk may decrease your chances of a not guilty. After the State's case, be sure to ask for a directed verdict. Have the case law ready for the judge. It is likely that the judge will be compelled to grant the directed verdict based on this new case law.

Prosecutor's Arguments and Defenses

Since this case law and before, prosecutors have consistently alleged that if the keys are in the ignition, that constitutes operating a motor vehicle. The mistake there and that this case law highlights is that it assumes that at the time the driver actively operated the car, they were intoxicated or that the car operating is assigned to the passive driver. Let's examine these two topics separately. First, the assumption that the driver at some point operated the car and must have been intoxicated. As one juror pointed out to me, he was guilty as hell but not guilty of being a DWI. What he meant by this is that it was clear to the jury that he was intoxicated, he had a .13 blood test after only an hour and a half from the stop. However, the officer himself acknowledged on the stand that he did not arrest the defendant for any actions that took place prior to the officer coming on the scene since he did not and had no witness to the operation of the vehicle or the condition of the driver at that time or if the arrested individual had even been the driver. The officer can only arrest based on the condition at the time he came on the scene. This leads us to the second argument. The prosecutor will argue the car being on and only another step or two being necessary to make the car move is enough for a DWI. However, this is a highly slippery slope as it transfers the condition of the vehicle to the passive individual. A sleeping person or even a person sitting in the driver seat of a car is not actively doing anything. They are not moving any gears, flipping the blinker, or can even prove that they turned on the air conditioning. That person has nothing but the potential of a crime. Can the police arrest for potential? The short answer is yes. They only need probable cause and as stated above, that has not be attacked under the new case law as of yet. But it goes with the saying "you can beat the rap but not the ride". But this belief that "operation of the vehicle" means something on in it is a slippery slope in and of itself. For example, a person tailgating could have turned the key in the ignition far enough to turn on the radio but not turn over the engine. They are drinking and they have operated a part of the vehicle, maybe not even from the driver's seat. Should this be a DWI? If a person turns on remote start while in their home drinking, does this equate to a DWI? The condition of the vehicle is secondary to the actions of the driver but is a large part of the equation as well. However, prosecutors will argue the potential and attempt to equate a running car to a sleeping person, even though it is in park and has no ability to move forward without further action that has yet to and is unknown as to if it would be taken. Another tactic prosecutors may use is to try and define operating by using other codes. For example, a prosecutor did actually ask the officer to identify the title of one of the chapters of the Transportation Code. The title is "Operation and Movement of Vehicles". However, the prosecutor failed to read any definition to the jury and further misled the jury as she never indicated it was from a completely different code than the Penal Code, under which you have the DWI statutes.


In conclusion, operating a motor vehicle should be a major consideration in the approach to a case especially considering the new case law when you have a client who was found asleep behind the wheel of a parked car not in the flow of traffic. If possible, explore testimony and the judge through a motion to suppress. Absolutely address it and allow the jury panel to argue the concept that there is no legal definition. The best tactic is to just tell them there is no law and let them ask you questions. This is not an area to lead the jury by the nose. Bring out the proper points during the cross examination. Ask for a directed verdict. And most importantly, show the jury the instructions at the end of the trial. Show them that you never misled them, that you were correct there is no law, and ask them to agree that a conviction here is not what the law intended and the state is asking them to go too far. It is very likely they will agree and you will have a not guilty verdict, no matter the SFSTs or BAC score.