What does "Operating" a Motor Vehicle Mean?

Under Texas law, a person cannot be found guilty of driving while intoxicated unless there is sufficient proof that he/she "operated" a motor vehicle while intoxicated.  See, Texas Penal Code section 9.94.  The question often while arise in some DWI cases, "what does it mean to operate a motor vehicle."  For example, let's say a person goes to a bar and has a few drinks.  Then he/she walks out to his/her car but decides it is not a good idea to drive home.  Instead, they get into the car, turn it on to listen to the radio and falls asleep intending to "sleep it off."  The question is, "can the state charge you with driving while intoxicated?"  The answer is YES.

Take a look at the cases below:

Freeman v. State, 69 S.W. 3d 374 (Tex. App--Dallas 2002)--In this case an officer observed a driver asleep in a parked vehicle with the motor running.  The vehicle was parked against a curb with the motor running and the lights on.  The court ruled that based on the totality of the circumstances it appeared that the defendant exerted personal effort in a manner that showed his intentional use of the vehicle for the purpose of driving and therefore sufficient proof of "operating" a motor vehicle.


Stagg v. DPS, 81 S.W.3d 441 (Tex. App.--Austin 2002)--Here an officer observed a vehicle stopped in a lane of traffic with the engine running, the lights on and no apparent mechanical flaws with the vehicle.  The court ruled that although no one actually witness the vehicle in motion, that the totality of the circumstances was enough to establish "operating."

Hearne v. State, 80 S.W. 3d 677 (Tex. App.--Houston [1st Dist.] 2002)--Here the defendant was found asleep behind the wheel with one hand on his head and the other on his waist.  Further, the vehicle was running but in park.  The court ruled that because the vehicle was running, registered to the defendant, the defendant was in the driver's seat and since no one else was around that there was enough to establish "operating."

What do the three cases above mean?  Well, legally speaking, it is no difficult for officers' to show that a person was "operating" a motor vehicle.  However, just because an officer can establish the legal sufficiency of a crime DOES NOT mean that the state will be able to establish factual sufficiency.

The jury can and will determine if the facts prove an element of a crime.  Therefore, under the original hypothetical above, the state could most likely charge the person with DWI.  However, a great argument could be made to a jury that the person was not "operating a motor vehicle but was merely doing the right thing by not driving off.  These factual arguments can be very powerful in certain DWI cases.



Stopped for DWI? Do you know your Rights?

Many people often ask me, "If I am stopped by an officer and suspected of drunk driving, what are my rights?"  This is a very good question because under Texas Law a police officer DOES NOT have to tell you about your rights when questioning you about drunk driving.  Additionally, Texas law does not require an officer to allow you to speak to an attorney while he or she is investigation a DWI.

So, If you are stopped by a officer and he or she begins questioning you about drinking, i.e., "have you been drinking?", then we recommend that you know and follow the following 7 points about your rights at the time you are stopped.

  1. Texas law requires you to produce a driver's license and current insurance card to the officer.
  2. You are allowed to tell the officer that you have committed no crime and request that your license and insurance be returned to you so that you may leave.
  3. If the officer says you are NOT allowed to leave: Tell him/her that you invoke your right to remain silent and will not answer any question concerning drinking and driving and that you WILL NOT CONSENT to ANY sobriety testing
  4. You have a right to REFUSE ANY Request for a Breath or Blood test
  5. You DO NOT have to Consent to a search of your vehicle
  6. You DO NOT have to answer any questions or Sign ANY paperwork
  7. You have a right to immediately request an attorney. 

These 7 points are not intended to help citizens avoid drunk driving convictions.  They are intended only to make the public aware of the rights a person has if questioned for drunk driving.

A failed breath test DOES NOT matter unless the State can prove you were over the limit at the TIME OF DRIVING!

In most DWI breath test cases, the State will attempt to convince the jury to find a person guilty based on a failed breath test.  In every one of these cases the State will use a breath test that was given some time after the arrest was made. 

It is important to remember that officers DO NOT HAVE scientifically valid breath test machines in their vehicles when they make an arrest for DWI.  Instead, the officer must transport the citizen accused of DWI to what is known as the "intoxilyzer room" which is usually located in a city or county jail.  The length of time between an arrest on the side of the road and a breath test score that is given in an intoxilyzer room is an important factor in EVERY DWI breath test prosecution.

The law requires that the state must prove a person was intoxicated AT THE TIME OF DRIVING, not 30 minutes, one hour or in many cases even longer when he or she gives a breath test at a jail facility.  In order to relate a failed breath test back to the time of driving, a State's expert must use what is known as Retrograde Extrapolation.

Retrograde Extrapolation is the scientific process used to take the score of a breath test and then back it up in time to show what a person's BAC was when they were driving.  However, in order to properly calculate usuing retrograde extrapolation the State's expert needs to know the following information:

  1. The person's gender;
  2. Their weight;
  3. The time they had their first drink;
  4. The time they had their last drink;
  5. The time of the stop (arrest);
  6. The type of alcoholic beverage consumed;
  7. The type of  food a person ate and when they last ate;
  8. The time the breath test was given;
  9. The result of the breath test.

Often time, the state does not have all of the information for their expert to properly retrograde a breath test result to the time of driving.  In these cases a successful argument can be made by the defense attorney that the State did not satisfy its burden of proving that the citizen accused was intoxicated at the time they were operation a motor vehicle, and therefore, they should be found NOT GUILTY of driving while intoxicated.

It is important to do a thorough review of the police report and video of a DWI investigation to determine if the State will have problems with retrograde extrapolation in a DWI breath test case.  This is one of the most successful defensive arguments and can, in some cases, lead to a not guilty verdict.


Could a trip to the dentist cause you to fail a breath test?

Did you know that those new braces, veneers, bridge or even cap may cause you to fail a breath test?  It is true!

Dental appliances can be a major factor in high breath test results. Like GERD defenses, dental issues concern mouth alcohol. If a person fails a breath test, and has had major dental work, this defense should be explored.

Dental appliances include, but are not limited to: braces, retainers, mouth expanders, bridges and false teeth or dentures. These appliances provide an opportunity for food to become trapped in the mouth after eating. Anyone who has had extensive dental work, such as braces, will tell you that getting food trapped in their teeth is a persistent problem.

When food is trapped within the teeth and alcohol is consumed, portions of the alcohol may become trapped in the teeth or dental appliance. Upon taking a breath test, breath is blown back through the mouth and alcohol molecules can be picked up by the expired breath before introduction into the machine. When this occurs, a false positive test for alcohol may be obtained.

Some studies have demonstrated that some dental adhesives can trap alcohol in ones mouth for up to one hour. A 15-20 minute waiting period before a breath test can be administered does not eliminate this problem.

There has been insufficient testing on subject who had both consumed and absorbed alcohol in their system with certain dental appliances to truly know the magnitude of the effect of the dental appliance. Therefore, a dental appliance problem can escape detection by the traditional slope detector on the machine. A “disconnect defense” may be available for a defendant who has dental issues, a high breath test and a “sober” video.

Note: The above article also appears in our Collin County DWI Blog.

What is the "Implied Consent" Law? Do I have to give a breath or blood test?

Does a citizen have an obligation to give a breath or blood test if asked by an officer during a DWI investigation?  To answer this question, an explanation of the "Implied Consent Law" in Texas is needed.  Below, please find an article from out Plano DWI Law blog detailing the Texas Implied Consent Law.

Texas Implied Consent Law.  By Dallas DWI Lawyer Troy P. Burleson

As I have reported in multiples posts, local counties are experimenting with mandatory blood tests from citizens suspected of DWI who refuse a breath test. These mandatory blood draws are likely to be challenged on state and United States constitutional grounds. As counties increasingly use this overly invasive tactic (forcible inserting a needle into citizens' veins), challenges to these policies are sure to follow.

However, a review of the Texas Transportation Code reveals that a citizen does have a right to refuse a breath or blood test. Below are three relevant sections from chapter 724 of the Texas Transportation Code which controls the law and procedures for blood and breath testing in Texas:

1) Implied Consent Law:

Most citizens do not know that as a condition of being issued a Texas driver’s license, they gave “implied consent” that they would submit to a breath or blood test if asked to do so by a police officer. Here is the Implied Consent law:

person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, to submit to the
taking of one or more specimens of the person's breath or blood
analysis to determine the alcohol concentration or the presence in
the person's body of a controlled substance, drug, dangerous drug,
or other substance.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type of
specimen to determine the person's alcohol concentration.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1013, § 32, eff. Sept. 1, 1997.

2) Your Right to Withdraw your Implied Consent and Refuse a Breath or Blood Test:

Although you gave implied consent to submit to a breath or blood test when you received your driver’s license, the Transportation Code allows you to WITHDRAW your implied consent and refuse a breath or blood test. Below is the relevant section from the Texas Transportation Code:

. Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

This section of the Transportation Code clearly states that a

“specimen may not be taken”

if a citizen refuses to submit to the test. Therefore, according to the Transportation Code, you have an ABSOLUTE RIGHT to refuse a blood or breath test.

As indicated in 724.013 of the code, there are some exceptions that prohibit a person from refusing a blood or breath sample. Below are the exceptions from Section 724.012(b) of the Texas Transportation Code:

(b) A peace officer shall require the taking of a specimen
of the person's breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has
suffered serious bodily injury; and
(4) the person refuses the officer's request to submit
to the taking of a specimen voluntarily.


I am having a hard time understanding the stance of certain district attorneys and counties who seem to believe a citizen does not have a right to refuse a blood or breath test. It seems clear that unless you are 1) involved in an accident, 2) in which an individual has died, will die or suffered serious bodily injury, and 3) you are arrested for DWI then you do have a right to refuse a blood or breath test result (See the above sections from chapter 724 of the Texas Transportation Code). Therefore, I believe it is only a matter of time before these mandatory blood test policies are challenged in the Texas appeals courts.

Currently, the law allows a police officer to obtain a warrant from a judge or magistrate and obtain your blood. As reported, many local prosecutors and district attorneys believe that citizens do not have a right to refuse a scientific test, such as breath or blood.

3) Exceptions to your Right to Refuse a blood or breath test:

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DWI: What Does the State Have to Prove?

Before the State can convict a citizen of the offense of Driving While Intoxicated, the prosecution must prove the following elements beyond a reasonable doubt:

The State MUST prove that:

  1. The Defendant;
  2. Operated a Motor Vehicle;
  3. In a Public Place;
  4. In the Texas County where the Defendant is charged;
  5. While the Defendant was Intoxicated.

In Texas, the term "Intoxicated" means either:

  1. The defendant lost the normal use of his/her mental OR physical faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance or any other substance into hi or her body; OR
  2. Had a blood or breath alcohol concentration over the legal limit of 0.08.

What is the Difference Between a DWI and a DUI in Texas?

One of the most asked questions we get from citizens is, "what is the difference between a DWI and a DUI?".  Below, is a detailed explanation of the difference that we posted on our Dallas DWI website and Collin County DWI website.

DWI v. DUI in Texas:  What is the Difference?

Under Texas Law, driving while intoxicated and driving under the influence are two distinct criminal offenses. Generally speaking, Driving While Intoxicated is a more major offense under Texas law with a greater range of punishment. Driving Under the Influence is a lesser punished charge with a smaller range of punishment. There are two main differences between DWI and DUI. The first is the age of the person accused. In Texas, any person regardless of age can be charged with DWI. However, only citizens under 21 years of age may be charged with DUI.

The second difference between DWI and DUI is the level of proof needed to prove the offense. To convict a citizen accused of DWI (Driving While Intoxicated) the State must prove that the person was intoxicated at the time he or she was operating a motor vehicle. For the legal definition of "Intoxicated" under Texas law, click HERE.

In order to convict a citizen of DUI (Driving Under the Influence) the State only has to prove that the person accused had ANY detectable amount of alcohol in his or her system at the time they were operating a motor vehicle. The State can prove this various ways including but not limited to: a) the accused admitting to consuming alcohol; b) the odor of an alcoholic beverage on a person's breath; or c) a breath test under the legal limit of 0.08.


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Dallas DWI Court Process: What You Need to Know

If you or someone you love has been charged with drunk driving we know you probably have a number of questions. Most people have never been through the criminal process and therefore do not know what to expect at their court appearances. Each county has different policies and procedures. The professional DWI attorneys at The Law Office of Troy P. Burleson, P.C. practice in the Dallas County Courts on a daily basis. Therefore, we have the knowledge to explain what you should expect at each of your court settings and guide you effectively through the Dallas DWI process. Below is a summary of the Dallas DWI court process.  For a review of what to expect from the Dallas County DWI Process, read the information below from our website www.dwidallaslawyer.com.


The Criminal Prosecution of DWI

In Texas, a first offense DWI is a Class B Misdemeanor that carries a range of punishment of not less than 72 hours or more than 180 days confinement in the county jail, a fine not to exceed $2,000.00 or any combination of fine and jail time. The good news is that most DWI offenders never go back to jail after the night of their arrest. Typically, people convicted of DWI are placed on probation for a period of 12-24 months. As long as the person complied with the terms and conditions of his or her probation, no more jail time occurs.

Do not expect to resolve your DWI case at your first court appearance. Several court appearances usually occur before your case is disposed.

First Appearance

The first time you will be required to go to court is know as a "First Appearance" setting. In Dallas County, the first appearance setting will normally be 40 to 60 days after the date or your arrest. At the first appearance, you will inform the court whether or not you have hired an attorney. If you have hired an attorney then he or she will meet with the prosecutors about your case. Your attorney will then begin the process of requesting copies of any police reports, witness statements, videos and any other evidence in the prosecutor's possession. After that, the court will give you a new court date for your first "announcement" setting. You WILL NOT be required to enter a plea or set your case for trial at the first appearance setting. Typically, you will do no more than sit in the gallery of the court during the first appearance process in Dallas. NOTE: If you hire us, you most likely will not have to go to court for any setting except for a plea setting or a trial setting. We will handle them on your behalf.

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Airbags may Give False-Hight Breath Test Scores

The Tyndall Effect is a physics concept used to discuss something known as “colloidal suspensions.”  Colloidal suspensions describe a homogenous substance consisting of submicroscopic particles dispersed in another.  Unlike solutions, colloidal suspensions exhibit light scattering.  A beam of light or laser, invisible in clear air or pure water, will trace a visible path through a genuine colloidal suspension, e.g. a headlight on a car shining through fog.  This is knows as the Tyndall effect (after its discoverer, British physicist John Tyndall), and is a special instance of diffraction.  Diffraction is a phenomenon that occurs with gases and liquids.

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5 Major Issues that May Affect a Breath Test Result

One can do a quick search on Google concerning the Intoxilyzer 5000 and discover that there is a great volume of internet literature concerning the many scientific problems with the machine used in Texas to measure a person’s breath/alcohol concentration. As an attorney dedicated to DWI/DUI defense I have spent numerous hours researching issues concerning the performance, or lack there of, of the Intoxilyzer machine. Below, are the 5 major issues concerning the performance of the Intoxilyzer 5000.

The 5 things that can have a major affect on the machines performance are: 1) Chemical Exposure; 2) Air Bags (aka the Tyndall Effect); 3) Atkins or low carb diets; 4) Gastro Esophageal Reflux Disorder (GERD); and 5) Dental Issues.

The first three (chemical exposure, Tyndall Effect, and Atkins or low carb diets) are problems based on interferents that may not be detected by the Intoxilyzer 5000. The last two relate to “mouth alcohol” which is increased alcohol laden breath results based upon gastro esophagus disorder and dental issues.

To read more about these 5 major issues that may affect the result from an Intoxilyzer 5000 click on the links below: