Under Texas DWI law, it is possible to be arrested for DUI even if you were not driving at the time the law enforcement officer witnessed your alleged offense. This is due to a legal condition known as actual physical control. Conversely, if you were not driving at the time of the offense the lack of evidence for actual physical control can also be used as a defense. Contact an experienced Dallas drunk driving lawyer if you have been arrested for DWI in the DFW area for actual physical control.
Dallas DWI and Actual Physical Control
An actual physical control DUI is when a person is charged with DWI but was not found to be driving at the time of the alleged offense. If you have been charged with DWI due to actual physical control of a vehicle in Dallas County, Denton County, Collin County, Tarrant County, Rockwall County, Johnson County, Wise County, or Ellis County, contact the experienced Dallas DWI defense attorneys of Law Offices of Richard C. McConathy.
They will use the condition of actual physical control as a defense strategy by showing that sufficient evidence for the condition does not exist. To schedule your free initial case consultation with Law Offices of Richard C. McConathy concerning actual physical control DWI in the Dallas area, call (972) 233-5700 today.
Actual Physical Control and Texas DWI
It is a common myth that in order to be charged and subsequently convicted of DWI in the Dallas-Fort Worth area, the officer actually has to catch you driving. In fact, when you read the statute governing DUI as an offense in Texas, this seems to be the case. Texas Penal Code § 49.04 states that it is an offense to operate a motor vehicle in a public place while intoxicated.
However, assuming the definition of “operate” means simply to drive the vehicle is incorrect. The legal definition for operate as it applies to DWI law has a different interpretation. According to Texas Administrative Code § 159.3(14), to operate a vehicle can mean to drive the vehicle, or it can mean to be in actual physical control of the vehicle.
Actual physical control has many elements that require proving, and can be more complicated to prove beyond a reasonable doubt than if an officer arrests you for DWI after seeing you drive on Dallas roads. Thus, if you were not driving, a defense based on lack of actual physical control may be effective. An experienced DWI defense attorney can review the facts of your case and determine if a defense strategy involving actual physical control could be effective.
Elements of Actual Physical Control in Texas DWI Cases
Aside from being able to be arrested for DWI even when not actually driving the vehicle, actual physical control can land you a DUI arrest even if you have no intent to drive the vehicle.
For instance, if you unexpectedly drank too much at the bar and were unable to arrange a safe ride home, you could still be arrested for DWI for sleeping in the back seat—even if the keys were outside the vehicle. That’s because actual physical control is the exclusive physical power and present ability to operate, move, park, or direct whatever use or non-use the motor vehicle is for at the moment.
Proving actual physical control in Texas varies on a case-by-case basis. There are many elements to consider, which the prosecution must prove to the judge or jury beyond a reasonable doubt in order to obtain a conviction for actual physical control DWI in DFW.
An experienced Dallas defense attorney can expose cracks in the case and show evidence that was gathered against your rights, which could weaken the prosecution’s argument for actual physical control. The elements of actual physical control in Texas DWI cases include, but are not limited to, the following:
- Whether the key was in the defendant’s actual possession, or close enough for him or her to quickly obtain actual possession
- The location of the defendant in or around the vehicle
- Whether or not the defendant is physically capable of starting the engine and causing the vehicle to move
- Whether the vehicle is operable or has recently been operated
Law Offices of Richard C. McConathy | Defense Attorney For DFW Actual Physical Control DWI
If you have been arrested and charged with DWI due to allegedly being in actual physical control of a vehicle in Dallas-Fort Worth, including Richardson, Addison, Garland, Irving, Grapevine, Grand Prairie, Denton, Plano, Frisco, McKinney, Arlington, Mesquite, Carrolton, and Lewisville, contact the experienced DWI lawyers of Law Offices of Richard C. McConathy.
They may be able to use the lack of proof of actual physical control as a defense to get your charges reduced or dismissed. Your first consultation is free, so call (972) 233-5700 today and schedule yours.