If the DWI statute requires driving or “operating” a vehicle while intoxicated, when does sitting in a parked vehicle constitute “operating” the vehicle? We often get phone calls from someone arrested for DWI in Tarrant County, TX, even though the officer never actually saw the person driving a motor vehicle. Instead, the officer found the defendant sleeping in a parked vehicle.

Although as a matter of policy, rewarding someone for pulling off the roadway to “sleep it off” the arresting officers rarely take this approach. Nevertheless, a jury often wants to see evidence that the defendant was actually driving.

When the officer never sees the defendant driving, the case is extremely difficult for the prosecutor to prosecute. In a so-called “parking while intoxicated” case, the criminal defense attorney will often file motions to suppress all evidence in the case because the initial detention was illegal.

If the case is not dismissed on a pre-trial basis, then at trial, the DWI defense attorney will show that insufficient evidence existed to show that the defendant was actually was intoxicated while operating a motor vehicle” which is often listed as the second element in a DWI prosecution.

Parking While Intoxicated Defense Lawyer in Fort Worth, Arlington, Grapevine, Keller, and Southlake, TX

If you were arrested for DWI even though the officer never saw you driving the vehicle, then contact an experienced criminal defense attorney in Fort Worth, TX, at the Law Offices of Richard C. McConathy. In many of these cases, the arresting officer will detain a person after finding them parked in their vehicle.

Contact us for a consultation to discuss your DWI case. Our Fort Worth DWI defense attorneys can help you understand the charges against you and important defenses that can be used to fight the case, especially when you were merely observed parking in your vehicle instead of driving it down the roadway. Call (817) 422-5350 today.

DWI Requires Proof that the Defendant was “Operating” a Vehicle

A conviction for DWI requires proof beyond all reasonable doubt that the defendant:

  • was intoxicated;
  • while operating a motor vehicle;
  • in a public place.

Tex. Penal Code § 49.04(a). So can the prosecutor prove that you were “operating” a motor vehicle, even though you were sleeping in the driver’s seat? The short answer is that it depends.

Definition of “Operating” under the Texas DWI Statute

In determining whether the evidence is sufficient to show that the defendant “operated” the vehicle while intoxicated, the court will look at the totality of the circumstance.

The courts in Texas have required a temporal link between the defendant’s intoxication and the operation of the vehicle. Kuciemba v. State, 310 S.W.3d 460, 463 (Tex. Crim. App. 2010). The Texas Penal Code does not define the term “operate.”

In Denton v. State, the Court of Criminal Appeals took a “totality of the circumstances” approach in deciding whether the defendant operated a vehicle within the meaning of the Penal Code. 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).

The Denton Court stated the defendant operated a vehicle when he “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Id. While driving involves operation, the operation of a vehicle does not necessarily involve driving. Id. at 389. In other words, the definition of operation does not require that the vehicle actually move. Id.

Operating a Vehicle for Purposes of a DWI Conviction

In Hearne v. State, 80 S.W.3d 677, 678–79 (Tex. App.—Houston [1st Dist.] 2002, no pet.), and Murray, 457 S.W.3d at 450, the defendants were found to have “operated” their vehicles for purposes of DWI.

In Hearne, the arresting officer found Hearne asleep in his car. 80 S.W.3d at 678–79. He was not touching the brake or accelerator pedals. Id. The arresting officer could not tell how long Hearne’s truck had been parked. Id. The court found the evidence sufficient to prove Hearne was operating his truck at the moment he was found because:

  • the truck was in a lane of moving traffic;
  • the engine was running;
  • the defendant was in the driver’s seat;
  • the truck was registered to the defendant;
  • no other person was nearby; and
  • the defendant stipulated that he was legally intoxicated.

Id. In Murray, unlike Hearne, the evidence was sufficient to prove that Murray operated his car while intoxicated before the arresting officer found him parked and asleep in a private driveway. The Murray court reasoned that a jury could have inferred Murray had driven his car while intoxicated based on these facts:

  • Murray was in the driver’s seat;
  • Murray was the only person in the vehicle and in the vicinity;
  • no alcoholic substances or containers were found in the area; and
  • based on the arresting officer’s observations, Murray was intoxicated.

See Murray, 457 S.W.3d at 449.

The court concluded that “a factfinder could have also reasonably inferred that Appellant drove his vehicle to the location at which he was found after drinking to intoxication. Id.

Parking While Intoxicated main

In Texas Department of Public Safety v. Allocca, 301 S.W.3d 364, 368–70 (Tex. App.—Austin 2009, pet. denied). In Allocca, the evidence was insufficient to support a probable-cause finding that Allocca was operating his car at the moment, and before, he was found. The following evidence supported the Allocca court’s finding that he was not operating his vehicle at the moment he was found:

  • The defendant was not stopped in the middle of a roadway or in a moving lane of traffic;
  • he was parked in his usual parking space behind the building where he worked;
  • he was not touching the brake;
  • the car’s headlights were not on;
  • the car was in park;
  • the engine was running; and
  • the front seat was reclined to accommodate sleeping.


In Alloca, a caller reported a suspicious vehicle, the car had no signs of being involved in a collision, no bystanders reported seeing Allocca driving, and the car was not blocking traffic. The Allocca court reasoned that the evidence suggested Allocca’s car was parked in a public parking space “long enough to arouse suspicion.” Additionally, the circumstances under which the car was parked, that is, the legality and location, were insufficient to indicate Allocca had driven there while intoxicated.

Other cases finding insufficient evidence of DWI in parking while intoxication case include:

  • Hudson v. State, 510 S.W.2d 583, 584 (Tex. Crim. App. 1974);
  • Ballard v. State, 757 S.W.2d 389, 391 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d)
  • Reddie v. State, 736 S.W.2d 923, 926–28 (Tex. App.—San Antonio 1987, pet. ref’d) (declining to infer defendant drove or operated the vehicle while intoxicated because other reasonable hypotheses existed).

Find A Tarrant County Attorney for a Parking While Intoxicated Case | Law Offices of Richard C. McConathy

Many clients call us and ask “Can I be charged with DWI if I wasn’t even driving?” The short answer is that the prosecutor can charge the crime, but it will be more difficult for the prosecutor to survive the motion to suppress or get a guilty verdict at trial. If the facts of your case show that you were “parking while intoxicated” or merely sitting in your parked vehicle when the officer began the investigation, then your attorney may need to file a motion to suppress alleging that the officer had no reasonable suspicion or probable cause. If successful then all evidence that the officer gained from that investigation might be suppressed (or thrown out).

Alternatively, at the motion hearing, the prosecutor might argue that no reasonable suspicion or probable cause is needed because of the community caretaking function. Hire an attorney that is prepared to argue this issue in a motion to suppress the hearing and fight for the best possible result in your case. Contact the Law Offices of Richard C. McConathy at (817) 422-5350 for a consultation.

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