DWI is a criminal charge that impacts many of us and our families, and cuts across all social and economic classes. An arrest for driving while intoxicated can reach anyone who drives a car on our streets. However, despite how frequently DWI arrests occur, there are many questions. What exactly does DWI mean? And what exactly it takes to get convicted for DWI? Answers to these questions often get lost or misunderstood in the chaos surrounding an arrest.

Arrest v. Guilt

As a criminal defense lawyer, I meet many people who have been arrested and confronting a charge for DWI. In my experience interacting with my clients and their families—people who have been directly impacted by DWI—I see how easy it is for people to jump to this conclusion: if I have been arrested, I am guilty. This is certainly understandable because of both the chaos and stigma of getting arrested, but it’s not true.

Probable Cause v. Beyond a Reasonable Doubt

It is crucially important to keep in mind that a police officer needs only probable cause to arrest. This is a much lower standard of proof than beyond a reasonable doubt. Prosecutors need beyond a reasonable doubt to convict. I wanted to write this page to try and clarify these questions, and outline the elements of DWI, and explain and demystify what can be a very emotional and confusing mess. We will start by looking at the actual law and then discussing each component part.

What are the Elements of DWI?

In Texas, there are four elements that comprise DWI. All four of these elements must be satisfied to sustain a DWI conviction. All four must be proven beyond a reasonable doubt by the state of Texas. Here are the four elements from Section 49.04 of the Penal Code.

Section 49.04. Driving While Intoxicated.

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place

The elements are highlighted in bold. All of them must be proven by the State of Texas, again, beyond a reasonable doubt for a jury to convict. Here ere are the four elements in the above sentence in bullet-point form:

  • Operating
  • A Motor Vehicle
  • In a Public Place
  • While Intoxicated

Typically, in a case, only one, or at most two, of these issues are in contention. Intoxication is almost always the most hotly contested of the four in plea negotiations or at trial. Operating can also be a hotly contested issue. Sometimes, although not as often, the other two elements—public place, motor vehicle—can be in dispute. We will discuss them in order.

What is Operating?

When operating is the main contested issue, it becomes a bit of a misnomer that DWI stands for driving while intoxicated. This is because operating a motor vehicle is a much broader concept than driving a motor vehicle. Operating a motor vehicle conceptually encompasses more than piloting a vehicle down the road, and can potentially include sitting in park on the side of the street with the car in park, listening to music. There is no definition in the Penal Code that can clearly tell us what “operating” means. One key difference between driving and operating, as illustrated by the above example, is that no proof of movement is necessary for a court to determine that there was operating.[i]

Police will sometimes seize upon a vehicle at rest, maybe after an accident, and nobody has seen the person actually driving the vehicle. The State will attempt to rely on circumstantial evidence to show the person was driving. In an accident case involving a single car, courts might look to how warm the engine is, or whether there are any other witnesses who can speak to the lapse in time between when the accident happened and when police arrived.

What is a Motor Vehicle?

Motor vehicle basically means any machine that has a motor, wheels, and travels along a roadway. This of course includes cars, trucks, motorcycles, buses, light trucks, tractors, truck tractors, and even bulldozers. Of the four elements, motor vehicle is probably the element that is contested the least. Here is the definition of motor vehicle from the Texas Penal Code Section 32.34(a):

A device in, or, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

Bottom line is a motor vehicle can be anything. I have even seen someone get charged with DWI on a golf cart. Strange things.

What is a Public Place?

There has been some amount of litigation regarding what is and what is not a public place. The Texas Penal Code also gives us an actual definition. The concept hinges on whether the public or some portion of the public can access the place. Here is the definition from Texas Penal Code 1.07(a)(40):

Any place to which the public or a substantial portion of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, and apartment houses, office buildings, transport facilities, and ships.

The definition specifically lists some zones or localities, like schools, that are clearly designated public places. The definition is not limited to these areas, and sometimes the issue is in dispute. These disputes may arise in which a person has been pulled over in rural places or deep on private property, such as a private driveway or yard.

What is Intoxication?

Intoxication is almost always in dispute in DWI cases. The State of Texas must prove intoxication beyond a reasonable doubt. Outlining all the ways an DWI defense lawyer can and should raise this doubt can fill many pages. In fact, on this website, I have written many pages about breath tests and blood tests. Please look to those pages for more in depth discussion of this topic. What I want to discuss here is the definition of intoxication and the three ways the State has in its arsenal to prove it. Here is the definition from Texas Penal Code 49.01(2):

(a) 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;


(b) Having an alcohol concentration of 0.08 or more.

So, there are three ways for the State to prove intoxication beyond a reasonable doubt: loss of physical faculties, loss of mental faculties, or have a BAC above 0.08. They can prove one or all three. Generally, if there is a blood or breath result above 0.08, the state will go for all three.

What is "Normal Use"?

The State will try to prove that someone lost the “normal” use of their mental or physical faculties. They will look to the driving facts and the field sobriety tests to try and show this. It is very important for defense counsel to contest what “normal” really means. The field sobriety tests are difficult and stressful. Everyone is different. Everyone has different capabilities and everyone responds to stress in different ways.

[i] Dornbusch v. State, 262 S.W.3d 432 (Police encountered a vehicle not moving with the driver asleep or passed out in the driver’s seat and the engine still running with the car in gear. The vehicle was stopped against a curb. This was enough evidence to support a finding of operating.)