Common sense and good public policy says NO! However, cops and prosecutors are taught otherwise. So, what is the legal answer? The legal answer is: DWI in Texas is “operate a motor vehicle.” The terms “operate a motor vehicle” are NOT defined in the Texas Penal Code, so judges and juries are free to assign their own definition to “operate.” I have had both juries and judges say Not Guilty in situations where a defendant is behind the wheel, asleep, and the vehicle is in park, parked in a parking lot or on a residential street. The obvious follow up questions are then posed. What if the defendant admitted to driving the vehicle? This is irrelevant. A defendant cannot provide the ‘corpus’ of the crime. There must be some piece of extraneous evidence outside a defendant’s admission of a prong of the of the crime. This doctrine of law exists to safeguard the legal system, to ensure there is actual evidence of a crime outside a confession. In the DWI context, it is critical. In our system of laws, proof beyond a reasonable doubt of guilt is incumbent upon the state to produce, not the citizen accused. Just because someone may have operated a motor vehicle at a certain point in time, does not mean they were operating a motor vehicle while intoxicated at the time of operation. What if someone takes a shot then pulls over in the parking lot within ten minutes, falls asleep and the blood or breath test is not taken for an hour? The highest criminal court in Texas, the Court of Criminal Appeals has outlined the closest thing to a legal definition of operation that exists in Texas.
In Denton v. State, 911. S.W.2d 388, 389 (Tex. Crim. App 1995), the highest Texas court specified that a person operates a vehicle when the totality of the circumstances demonstrates that the person “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” No one purchases an automobile to listen to the radio, for air conditioning, or the heater. When a vehicle is parked, it is obvious that action was taken to disable the vehicle’s use for locomotion down a road or pathway. So why is it that people who are responsible and park their vehicles, in an effort not to drive, are arrested and prosecuted for Driving While Intoxicated? These are public policy questions that (unfortunately among many different police departments and prosecutors’ offices), are being answered incorrectly. When a responsible person is prosecuted for taking safe action that does not fit the definition of operate, the message is being sent that it is better to risk driving while intoxicated, rather than playing it safe for all involved.
This is not a message that Mothers Against Drunk Drivers would support or anyone who has experienced the tragedy of losing a lost one to DWI. So, to answer what should be a simple question of “Can you get a DWI for being asleep, parked in a parking lot?” The answer should be NO, but is not quite that simple. It is imperative for the lawyer to fight for the voice of reason and safety in these cases. As for the police and prosecutors who retort, “Well, they might just drive away if you let them sleep in the parking lot?” The answer is- the penal code punishes for offenses that have been committed not those that may be.