Posted on 10/16/17

Often, people who face Driving While Intoxicated charges, or DWI, feel that the prosecution is working overtime to bring them down. The thought of having a life-altering experience due to a DWI is terrifying. The adage of innocent until proven guilty still applies, even though things may look bleak.

DWI Elements

The Texas Penal Code in Section 49.04 provides that for the prosecution to sustain a guilty verdict for of DWI, the defendant must be the following:

  • Intoxicated;

  • Driving or operating a motor vehicle; and

  • In a public place.


Intoxication can be from the influence of either alcohol or drugs. The Texas Penal Code defines “intoxication” as either

  • Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

  • Having an alcohol concentration of 0.08% or more.

The Texas Penal Code accounts for the reality that some people can hold their liquor better than others, thus the two different methods above for proving intoxication. The prosecution prefers to use the second method because it provides a clear result of legal intoxication. In contrast, the first method is nebulous, allowing for the parties to argue whether the defendant was actually legally intoxicated.

Note that the Penal Code does not require the prosecution to prove the type of intoxicant.

Driving or Operating a Motor Vehicle

The prosecution usually relies on information from the police that the defendant was operating or driving his or her vehicle on a public road while intoxicated. This information is based on the police witnessing the event and is usually recorded in the police log.

In addition, the Dallas Court of Appeals, in the case Barton v. Statefrom 1994, found that sufficient evidence existed with respect to operating a motor vehicle when the police found the defendant napping in his car while the car was running. That is to say, the interference that the defendant operated the vehicle because he was sleeping in the car is sufficient to satisfy the definition of DWI.

Public Place

In a legal context, the Penal Code defines term “public place” means any area wherein the public, or a substantial group of the public, has access. This includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

In the case Fowler v. Statefrom the Amarillo Court of Appeals in 2001, the court ruled that an unpaved driveway of a rural residence located 1/4 mile from a county road in an isolated area is not a public place. While a significant number of DWI arrests occur on the highway, there are a number of arrests made on rural Texas roads. When that occurs, a defendant should consider whether he was operating in a public place, which may be determinative whether there can be a DWI conviction.

If you are facing charges stemming from a DWI arrest, contact a criminal defense lawyer who is experienced and knowledgeable. Contact the law firm of Christopher Abel.

(image courtesy of Courtney Recker) 

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