What does "Operating" a Motor Vehicle Mean?

Posted on April 12, 2010 by Troy Burleson

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 49.94.  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.

 

 

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7 Defensive Tactics that may be used to WIN your Dallas DWI

Posted on May 24, 2009 by Troy Burleson

 

7 Defense Tactics that may be used to Win your case prior to trial by using Pre-Trial Motions: 

by Dallas DWI attorney Troy Burleson

1. Contest the constitutionality of any search and seizure of your person;
2. Contest the constitutionality of your stop;
3. Contest the constitutionality of the administration of roadside tests (SFSTs);
4. Contest the constitutionality of the probably cause of your arrest;
5. Contest the constitutionality of the reading, or lack there of, of your Miranda rights;
6. Contest the manner in which roadside tests were administered by the officer;
7. Contest the use of any blood or breath test.

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10 Mistakes People Make after being Arrested for a Texas DWI

Posted on November 12, 2008 by Troy Burleson

The 10 biggest mistakes most people make after being arrested for a DWI in Texas .

1. Failing to request an ALR hearing within 15 days of your arrest.

In order to save your driving privileges after a DWI arrest, Texas laws requires that you request an ALR hearing within 15 days of your arrest. If you fail to do so, your driver’s license will be AUTOMATICALLY SUSPENDED. My office DOES NOT CHARGE you to assist you in requesting this hearing prior to your appointment.

2. Thinking that being charged with DWI is not a serious matter.

A DWI charge is a very serious matter. You face fines, jail time, loss of driving privileges and other hidden costs like raised insurance rates and the possible denial of certain employment opportunities. Also, a DWI conviction will be on your record FOREVER. A DWI conviction CANNOT BE REMOVED from your criminal record for ANY reason.

3. Representing yourself.

The DWI laws in Texas are complicated and combine elements of civil, criminal and governmental law. Even lawyers who do not specialize in DWI case often times struggle with DWI laws. For the best results, you should choose a qualified, experienced DWI lawyer for the best possible outcome for your case.

4. Choosing an attorney based solely on cost.

Your opponent in this lawsuit is the State of Texas. It has almost unlimited resources (attorneys, investigators, police, etc) to prosecute you. You should expect to pay a fair fee based upon the time, effort, experience and reputation of the attorney. If you choose the lowest price, you are certain to obtain the least amount of effort toward defending your case.

5. Not asking the attorney about her/his DWI experience.

The biggest mistake most lawyers make is to treat a DWI like other criminal cases. Do not be afraid to ask your attorney what his or her experience is with DWI cases. Ask, (1) how many DWI cases the attorney handles per year, (2) how many DWI cases has he or she taken to trial, (3) what specialized training does your attorney have in regard to DWI, (4) how vigorously does your attorney fight to prevent your driving privileges from being suspended, etc.

6. Failing to request a hearing on your driver’s license suspension within 15 days of your arrest.

Failing to request a hearing will result in an automatic suspension of your driver’s license. In addition, if you then fail to obtain a occupational driver’s license and drive during any suspension period then you have committed another crime which could result in your arrest and an additional criminal prosecution.

7. Agreeing to the first plea offer from the prosecutor.

When you accept a plea your are admitting to the crime for which your were charged. In addition, you are waiving your Constitutional rights. Plus, very few prosecuting attorneys have the authority to dismiss or even reduce a DWI offense. Without a thorough investigation of your case, you cannot possibly know whether or not their offer is reasonable.

8. Failing to appear on your court dates.

When you posted your bond and were released from jail you promised to appear at every court date you are given. If you fail to appear for these dates, your bond will be forfeited and a warrant will be issued for your arrest. Additionally, a judge may decide to place you in jail until your trial date.

9. Hiring an attorney who is not an experienced DWI attorney to represent you.

It is simple, if you needed a root canal, you wouldn’t go to an eye doctor, right? Lawyers are like doctors, the specialize in certain area of the law. DWI is a highly specialized area of law. Different facts involve different provisions of the law. There is no substitute for actual, hard earned experience when it comes to defending clients accused of DWI. Prosecutors know who the experts in the field of DWI are and which attorneys are tough in trial. You want the most competent person to represent you when your freedom in at risk. Therefore, only choose an experienced attorney dedicated to the practice of DWI defense.

10. Think that talking to numerous attorneys will help you handle it on your own.

Without an attorney, you are relying in the kindness and integrity of your major opponent. Without knowing the rules that govern the entire process, you may be prevented from even presenting any meaningful defense.

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Charged with DWI in Texas: Here is a quick review of the Texas DWI Laws

Posted on November 11, 2008 by Troy Burleson

Classification of DWI under Texas Law: Texas Penal Code §49.04.

Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of DWI under Texas Law are as follows:
• DWI, First Offense: Class B Misdemeanor
• DWI, Second Offense: Class A Misdemeanor
• DWI, Third Offense (or more): Third Degree Felony
• Intoxicated Assault: Third Degree Felony

First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04

A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:
1. The defendant;
2. On or about a certain date;
3. Operated a motor vehicle;
4. In a public place;
5. In a particular county in the State of Texas;
6. While Intoxicated.

Definition of “Intoxication” under Texas Law
The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas penal Code §49.01(2)]:
1. “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
2. “having an alcohol concentration of 0.08 or more.”

Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:
1. not having the normal use of physical faculties OR
2. not having the normal use of mental faculties OR
3. having an alcohol concentration of 0.08 or more.

It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated only that the all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between the when a person was arrested and when sobriety tests where preformed.

1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences.

The punishment for a first offense DWI is:
• A fine not to exceed $2,000.
• Confinement in the County Jail for a term not less than 72 hours and not more than 180 days.
o NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
• Not less that 24 hours of community service nor more than 100 hours.
• Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
• Complete a DWI Education course within 180 days for the date of conviction.
• Attend and complete an M.A.D.D. Victim Impact Panel.
• Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
• Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
• Pay all fines and costs in a timely manner.

If you case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these types of cases, a judge in his or her discretion may impose the following conditions:

• Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
• Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
• Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
• Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
• No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.

2nd Offense DWI: Class A Misdemeanor.

Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior conviction that occurred in a different state to enhance a Texas DWI.

The punishment for a second offense DWI is:
• A fine not to exceed $4,000.
• Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
• 80 to 200 hours of community service.
• A Deep Lung Device is typically required for all DWI second offenders.
• A possible driver’s license suspension of 180 days to two (2) years.
• T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time is your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
• NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while their case is pending or until the judge orders that it can be removed.

Third Offense (or greater) DWI: Third Degree Felony.
The Punishment for a third offense (or greater) DWI is:
• A fine not to exceed $10,000.
• Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less that two (2) years nor more that ten (10) years.
• A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional licenses that may be awarded after a conviction for Felony DWI.
• A possible driver’s license suspension of 180 days to two (2) years.
• SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient; incarceration program ran by the state of Texas. This program requires confinement in a state Facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.

 
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