Sleeping it off in the car after a fun night out is a common way to attempt to avoid a DWI/DUI arrest in Austin. If you’re not driving the car, the officer surely won’t arrest you…right?
The answer to this question is not so cut and dried. It comes down to how a court eventually interprets what it means to operate a motor vehicle under the Texas DWI statute. The basic question is: has the individual exercised enough control over the vehicle to constitute operating or driving the car? An officer (who did not see the “operation of the vehicle”) approaching a vehicle with a sleeping occupant is trained to gather information that attempts to answer, “how did this vehicle get here.” Every part of the interaction with the officer is designed to collect information to support arresting you for a DWI.
If you find yourself talking to an officer after sleeping it off, what you say/do has a dramatic impact on whether or not you are charged with a DWI and, if charged, whether or not you could ultimately be convicted. Let’s take a deeper look at some of the scenarios that lead to the arrest of a sleeping occupant. At the end, we’ve include tips to avoid a DWI arrest. But first, a word about “operation.”
A DWI arrest is all about two things: Operation and Impairment. For the purposes of this article, we will focus on operation and save impairment for another day.
Operation and Control
Surprisingly, there is no legal definition for operating a motor vehicle in the Texas Penal Code, resulting in much ambiguity. Consequently, officers use their judgment, and the judges end up deciding how to interpret “physical control”. US Legal Traffic Control Laws define physical control of the vehicle as the ability to “initiate a movement of, and in close proximity to the operating controls of the vehicle.” This is the primary element police rely on when observing a situation where they find an individual sleeping in their car. But an officer’s judgement doesn’t always line up with the facts or the law. What is abundantly clear is that the following rule of thumb prevails: namely, that the less likely an individual is able to turn their car on and drive away, the less likely they will be found to be in physical control.
On to the scenarios…
The most obvious situation is when there is a collision with another vehicle or object like a tree, curb or guardrail. The vehicle may be stationary or immobile and the engine not running but the circumstantial evidence points to recent operation of the car. If the accident involves another vehicle, a witness may be able to place you behind the wheel. It’s the circumstantial details that the police gather when investigating a possible DWI/DUI that count not whether the police actually observed you driving the vehicle.
Sleeping in the Driver’s Seat
While sleeping in the driver’s seat is not usually enough by itself to make a case for controlling or operating a motor vehicle, there are other companion facts or circumstances that do contribute to determining physical control of the vehicle. What are those circumstances? Keys in the ignition for one. A person may have just turned the key in the ignition to turn on the radio or the air-conditioning. However, a police officer will cite this fact as clearly suggestive of possible operation. The engine running. In the mind of the officer, this is further confirmation that the person is exercising control over the vehicle. If the vehicle is in gear and the individual’s foot is on the brake, the officer will most certainly conclude that the element of operation has been met. If the officer has already determined that the individual is intoxicated and the above-mentioned clues of control or operation of the vehicle are present, an officer may well conclude that probable cause exists to charge the person with DWI/DUI.
Simple Welfare Check
Typically, if police see a vehicle parked on the side of the road, they will perform a welfare check to make sure the person is not hurt, injured, or in need of help. The officer has the authority to tap on the window and ask if the individual is okay. This often leads to the officer asking the person to step out of the vehicle or to open the car door. If the officer smells the odor of alcoholic beverage or observes poor coordination or slurred words, the officer can then conduct a DWI/DUI investigation and can ask the person to perform standardized field sobriety tests. The officer may even ask the individual to take a portable breath test. If he determines that the person is intoxicated or under the influence of alcohol (impairment), the officer must then determine whether or not that person has been operating the vehicle. Depending on the officer’s assessment of “control or operation of the vehicle,” that person may well be charged with a DWI/DUI.
Let’s be clear, setting aside all the legal stuff…It is always better to find a safe place to pull over and wait or sleep than drive intoxicated. We firmly believe and will always hammer home to a prosecutor: Choosing safety should not be a reason for punishment. We have had extraordinary success with getting these types of DWIs dismissed. With a better understanding of these situations, you may help yourself dramatically.
Whether you pulled over to a safe spot after realizing you shouldn’t be driving or climbed into your parked car, unfortunately, sleeping in a motor vehicle all too often does not prevent someone from being arrested for being under the influence in Austin. Read the following tips to help you avoid a DWI arrest or conviction.
Tips to Avoid Possible DWI/DUI Violation:
Sleep in the back seat: This will ensure that you are nowhere near the driver’s seat, making physical control more difficult to prove.
Make sure the engine is turned off: Turning off the engine indicates that you were not just driving or that you were about to drive. You do not want to give a police officer any indication that you intended to drive while intoxicated.
Make sure your keys are not in the ignition and not within reaching distance: The best place for your keys is either outside on top of one of your tires, or in the truck. This shows lack of physical control when the element to make the car move is not within reaching distance.
Park in a spot that is safe, preferably not on a public road, and in a legal space: If you are parked in a public area or on the side of a public road, your car is more likely to be seen. In order to be safe and sleep off the alcohol in your system, make sure your car is parked away from public roads and areas. This is also to ensure your safety; parking on the side of the road or a highway can be very dangerous.
Do not say that you were driving while having alcohol in your system: Even if you are sleeping in the back seat, with the car turned off, and your keys in the trunk, the police officer will still try and get you to admit that you have been recently driving. This is a way for the officer to get around the physical control element if they can prove you were recently driving, and your blood alcohol level is elevated.
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