The ambiguity around what constitutes “actual physical control” or APC has been somewhat of a gray area in numerous court cases in Texas. Generally, being in ‘actual physical control’ is defined as possessing the ability to initiate movement of the vehicle. If an individual is sitting in a car where the driver sits and the keys are in the ignition while intoxicated, there’s a strong argument that they have actual physical control of the vehicle, even if the car isn’t moving. As a result, several defenses can be applied based on the statutes, focusing on factors like the intent to operate the vehicle, the location where the control was exercised, and the nature of the intoxication. However, each DWI case is unique, and the success of any defense strategy will depend on the specific facts and evidence. Therefore, consulting a skilled Texas DWI defense law firm is essential for anyone facing such charges.

Attorneys Michael Price and James Twine are experienced in defending individuals charged with DWI including cases involving allegations of “Actual Physical Control” in which the individual was not driving at the time they encountered law enforcement. Price & Twine 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 or APC, contact our office at 512-354-1880 to schedule a free consultation to discuss your case with one of our attorneys. Our team is ready to begin your defense today.

APC Information Center

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Legal Consequences And Penalties

According to Section 49.04 of the Texas Penal Code, the basic offense of a DWI is a Class B misdemeanor, with a minimum confinement period of 72 hours. The 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, which would elevate the offense to a Class A misdemeanor.

Administrative License Suspension

It’s also essential to consider the Administrative License Suspension, as governed by the Texas Administrative Code. An administrative driver’s license suspension or denial can be triggered under the ALR Program, 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

The Complexity Of Actual Physical Control: A DWI (Driving While Intoxicated) charge in Texas is a serious matter with potentially severe consequences. One element that can be particularly complicated is the concept of “actual physical control” of a vehicle, as stated in the Texas Administrative Code Rule §159.3. This term doesn’t necessarily mean the person was or wasn’t driving, but it does imply the capability to operate the vehicle. This ambiguity presents both challenges and opportunities for defense. Here are some specific defenses based on “actual physical control” that could apply under the statutes.

The Ambiguity Of ‘Operating’ A Motor Vehicle

Before diving into the defenses, it’s essential to understand what the law means by “operating” a motor vehicle. According to Texas Statutes Section 49.04, an individual commits a DWI offense by being intoxicated while “operating” a vehicle in a public place. The term ‘operate’ is further 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.

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.

Geographical Considerations: Public Place

Texas Statutes Section 49.04 specifies 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

The term “intoxicated” is clearly defined in Texas Statutes Section 49.01. However, 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, and therefore should not be held liable for a DWI offense.

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 Constitutes ‘Intoxication’ According To Texas Law?

According to the Texas Statutes Section 49.01, “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.
  • Having an alcohol concentration of 0.08 or more.

What Does ‘Operating A Motor Vehicle’ Mean?

The term ‘operate’ is key to a DWI offense in Texas. According to the Texas Administrative Code Rule §159.3, “operate” is defined as “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. The court will consider factors such as the vehicle’s location, whether the engine was running, and the individual’s proximity to the driver’s seat.

What Are The Penalties For A DWI Offense In Texas?

According to Texas Statutes Section 49.04, a typical DWI offense is a Class B misdemeanor with a minimum term of confinement of 72 hours. Penalties can increase if an open container of alcohol is found, or if the alcohol concentration level is 0.15 or more, elevating the offense to a Class A misdemeanor.

Can My License Be Suspended Administratively?

Yes, under the Texas Administrative Code, the ALR (Administrative License Suspension) Program can suspend your license administratively, separate from any criminal proceedings. 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 under the ALR Program. Texas has an “implied consent” law, meaning that by driving on Texas roads, you’ve implicitly consented 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. Thus, 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 – Texas State Law Library provides official codes and statutes that define DWI offenses, which may include scenarios other than driving.

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 are Ready to Defend You

Texas DWI laws can be complex, and the implications of a DWI charge can be severe. For personalized counsel, those charged should consult a knowledgeable Texas DWI defense law firm. At Price & Twine, PLLC, our DWI lawyers are skilled in the specific field of criminal defense for drunk driving cases. We know how stressful and confusing the legal process can be, and we are here to help you every step of the way. Don’t gamble with your future—choose a DWI attorney who will go above and beyond to protect your rights. Contact us now at (512) 354-1880 to begin your defense immediately.