Evidence? We Don’t Need No Stinkin’ Evidence!

By | April 17, 2015


In DWI cases, the issues often boil down to whether the accused was driving and whether he was intoxicated when he was driving. It’s usually obvious that the client was driving. The video shows it or the accused admits to having been driving.

But sometimes it isn’t obvious that the client was driving.

Let’s compare two cases on this topic. One is Texas Department of Public Safety v. Allocca, decided by the Austin Court of Appeals in 2009. The facts were that early one morning, an officer in Austin was dispatched to investigate a suspicious vehicle in the parking lot of the parking lot of a Jiffy Lube on West Parmer. Mr. Allocca was asleep in the driver’s seat of his vehicle with the engine running. The officer arrested him for DWI. His license was suspended for 2 years because he refused to give a breath sample and had a prior conviction for an alcohol related offense.

At the ALR hearing, Allocca testified he was the manager of the Jiffy Lube, that he had left his vehicle parked there after work that day, and gone to a bar with some friends. He was dropped back off later that evening. He reclined his driver’s seat and fell asleep. He had already been arrested once before for DWI and so he didn’t want to drive again.

The Austin Court of Appeals decided that the circumstances in which Allocca was found, particularly the reclined driver’s seat, would have made it difficult, if not impossible, for Allocca to operate the vehicle as something other than a device to use as an air conditioner while he slept. The mere act of sitting in a legally parked vehicle while intoxicated does not necessarily establish probable cause absent some other factor indicating that the accused actually drove the vehicle.

So much can change in six years or so.

In Chad William Murray v. State, the Court of Criminal Appeals took up the question of “whether a driver who is passed out behind the wheel of a running vehicle is operating it for the purposes of [a] DWI.”

Mr. Murray was found asleep behind the wheel of his car between 1:00 and 2:00 AM on January 16, 2011. The vehicle had its headlights on, but the engine was in “park,” with the radio turned up.

The Court of Criminal Appeals held that this evidence was legally sufficient to sustain the jury’s finding that Mr. Murray had operated his vehicle.

In his dissent, Judge Meyers pointed out that the majority held that because a jury could have reasonably inferred that Mr. Murray had both consumed alcohol somewhere other than where he was found and drove to where he was found after drinking to the point of intoxication, the evidence was legally sufficient to support Mr. Murray’s conviction.

Judge Meyers poses this question: “since when can juries make inferences that are not based on direct or circumstantial evidence?” He points out that there is no evidence that speaks to when the vehicle was driven to where it was found, or when or where Mr. Murray became intoxicated.

It looks very much as if the Court of Criminal Appeals, if faced with the Allocca evidence, would have found that sufficient to support a conviction there.

So if you think you’re doing the responsible thing by not driving, and just need the air conditioner on for a hot Texas night, or the heater on for a frosty evening, you might be right.

But that doesn’t mean you’ll avoid a DWI conviction.