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Law Educator, Esq.
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D driving 2:00 a.m.parks on shoulder of highway turns off m.v.,

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D driving 2:00 a.m.parks on shoulder of highway turns off m.v., activates emergency lights, puts keys in pocket, goes to sleep in back seat. Police officer stops to investigate, wakes up D asked if been drinking-yes,were you driving m.v.-yes. field sobriety test performed & failed. Arrested blood test marked .18.
Q:Was there probable cause to arrest for D.W.I.?
Q:How could it be D.W.I. if he was not driving?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Under Texas law, Section 49.04 of the Texas Penal Code provides that a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. 49.04 (Vernon Supp. 2000). There must be a concurrence of the elements for a crime to have been committed. If a person is intoxicated, but sitting in a parked vehicle, then Texas courts have held that the proof was not legally sufficient to convict a defendant for driving while intoxicated, since the person was not driving or operating the vehicle, even though the person was intoxicated. Ballard v. State, 757 S.W.2d 389 (Tex. App. Houston [1st Dist.] 1988, pet. ref'd); Reddie v. State, 736 S.W.2d 923 (Tex. App. San Antonio 1987, pet. ref'd).

The Texas courts hold that "ndications that the accused was intoxicated at the time the police arrived do not in themselves prove such intoxication at the prohibited time, i.e., when the accused was driving." Weaver v. State, 721 S.W.2d 495, 498 (Tex. App. Houston [1st Dist.] 1986, pet. ref'd). There must be evidence beyond a reasonable doubt not only that the defendant had been driving a motor vehicle and was intoxicated when the police arrived, but that the defendant had been intoxicated while driving the vehicle. Id.

Thus, if they cannot prove you were actually driving at the time you were intoxicated, they could not convict you of DWI. However, the fact that you got to the shoulder of the highway and if there was no proof of drinking in the car (empty bottles etc) and you were intoxicated in the car, there is evidence you got to that spot on the highway in some manner and as such they will use that to prove that you were intoxicated when you drove to that spot on the highway as opposed to you going into your car in the parking lot of the bar and falling asleep there would be no proof that you ever drove while you were intoxicated.

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Customer: replied 3 years ago.

What happens if drive from bar & b/c you're too sleepy you park at a parking lot of another bar or fast food restaurant. Car turned off, police investigate, you tell officer you drove to parking lot approx. 15 minutes ago. Arrested.What results?

Q: What if you tell officer you were drinking at the establishment were you're parked or refuse to answer if driving or not?


Thank you for your response.

I am afraid that you should not be driving from the bar intoxicated, but in your situation you mentioned above, he would have to prove you were not drinking at the place where you parked in order to prove you drove the vehicle and charge you with DUI under the Texas law. He can do that by going to the bar to try to find out from the employees if you drank in that bar.
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