Being in actual physical control (APC) means possessing the ability to initiate movement of a vehicle. Under Texas law, an individual could be charged with driving while intoxicated (DWI) if they weren’t driving as long as they were still in actual physical control of the vehicle.

Attorneys Michael Price and James Twine are experienced in defending individuals charged with DWI including cases stemming from actual physical control. Price & Twine, PLLC is based in Georgetown, Texas, and serves the communities of Williamson and Bell Counties, including Georgetown, Round Rock, Cedar Park, and Leander in Williamson County and Killeen, Temple, and Belton in Bell County. If you’ve been arrested for DWI, contact our office at 512-354-1880 to schedule a free consultation to discuss your case with one of our attorneys.

APC Information Center

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Legal Consequences For DWI

According to Texas Statutes Section 49.01, it is illegal to drive while intoxicated. “Intoxicated” is defined in two ways: not having the normal use of mental or physical faculties due to the influence of alcohol or other substances, or having a blood alcohol concentration of 0.08 or more.

According to Section 49.04, DWI is classified as a Class B misdemeanor punishable by 3-180 days in jail and up to a $2,000 fine. The classification of the offense and penalties could escalate depending on various factors such as having an open container of alcohol or showing a blood alcohol concentration level of 0.15 or more.

It’s also important to consider the Administrative License Suspension, which is a consequence of DWI charges. This is separate from criminal charges. In other words, an individual could face license suspension irrespective of whether they are convicted of a DWI in a criminal court.

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Defenses To A DWI Based On Actual Physical Control In Texas

One element that can be particularly complicated is the concept of “actual physical control” of a vehicle.  According to Section 49.04, an individual commits a DWI offense by being intoxicated while “operating” a vehicle in a public place. The term ‘operate’ is defined as “to drive or be in actual physical control” of a motor vehicle.

Lack Of Intent To Operate

One defense could focus on demonstrating a lack of intent to operate the vehicle while intoxicated. For example, if an individual was sitting in a parked car waiting for a sober driver to arrive, they may argue they had no intention of driving the car themselves. The court in a DWI case will consider factors such as the vehicle’s location, whether the engine was running, and the individual’s proximity to the driver’s seat.

Temporary Control For Safety

In some instances, a person may argue that they took control of the vehicle to prevent harm or for reasons of personal safety. For example, if they moved the car a short distance to remove it from an unsafe situation, they could claim they were not intending to operate the vehicle in a manner consistent with typical DWI cases.

Private Property

Texas law says that the DWI offense must occur in a “public place.” Therefore, if the individual was on private property, they may have a defense against DWI charges. This angle is particularly relevant if the person was in “actual physical control” but not in a location accessible to the public.

Involuntary Intoxication

There may be cases where the intoxication was involuntary, such as someone unknowingly consuming a spiked drink. In these rare cases, the defense could argue that the individual was not intentionally intoxicated.

Issues With Alcohol Concentration Measurement

The definition of “intoxicated” also includes specific alcohol concentration levels. Any irregularities or inaccuracies in the measuring process—be it a breathalyzer or blood test—could serve as a potential defense.

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Frequently Asked Questions Based On Texas DWI Statutes

What Does ‘Operating A Motor Vehicle’ Mean?

The term ‘operate’ means “to drive or be in actual physical control” of a motor vehicle. Therefore, it is possible to be charged with a DWI even if one was not actively driving but was in a position to control the vehicle.

Can I Be Charged For DWI If I Was Not Driving?

Yes, based on the Texas statutes, being in “actual physical control” of a motor vehicle while intoxicated can lead to a DWI charge.

Can My License Be Suspended Administratively?

Yes. This suspension is often initiated right after an arrest and can occur even if the individual is not subsequently convicted in a criminal court.

Can I Refuse A Breath Or Blood Test?

While an individual has the right to refuse such tests, doing so will result in automatic suspension of their driving license. Texas has an “implied consent” law, meaning that by driving on Texas roads, a person consents to alcohol testing if arrested for DWI.

How Can I Defend Myself If Charged?

Defenses can range from contesting the accuracy of alcohol concentration tests to challenging whether the individual was in “actual physical control” of the vehicle. Legal defenses can be complex and highly fact-specific. So, consulting a skilled Texas criminal defense law firm is essential for anyone facing DWI charges.

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Additional Resources for DWI Laws In Texas

Texas Penal Code on DWI – View the Texas statutes that define DWI offenses, including the scenarios which could result in non-driving DWIs.

TABC Alcohol Laws – Texas Alcoholic Beverage Commission details how alcohol laws, including DWIs, are enforced in Texas.

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Price & Twine DWI Defense Attorneys

The law in Texas is not crystal clear on what constitutes being in actual physical control, and the lack of this clarity presents a great opportunity for an experienced DWI lawyer to defend an individual charged with DWI who wasn’t driving. Those facing charges should consult a knowledgeable Texas DWI defense law firm. At Price & Twine, PLLC, our DWI lawyers help to protect clients’ rights and aim to get clients’ DWI cases resolved on the most favorable grounds possible. Contact us at (512) 354-1880 for a consultation.