Asked in DUI / DWI for Texas

Q: I was arrested for dwi in Texas while I was in parked in front of my off street apt. Police called for me playing music

Police were dispatched to my apt where I was cleaning my vehicle listening to music in front of my small apartment fir noise complaint.

This is a home that has been converted into three small apartments. To access my place one must turn down an entrance that is not easily accessible from street with only one way in or out..parking is restricted to only renter and is very strict to that..

Had keys in auto position to have music on ..allegedly someone called at 2pm in the afternoon about noise from my music playing .

Officer showed up and arrested me for dwi..I was not behind the wheel and had no intent to be behind the wheel ..I was parked in front of a restricted access to public designated parking spot directly 2 feet from my front door cleaning my vehicle ..is this lawful..do I have a leg to stand on for dismissal..on top of that I've had to pay for a breathalyzer in my vehicle for almost a year now..please any info you can provide will be helpful as this has caused me to my job

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2 Lawyer Answers
Jose A. Ceja
PREMIUM
Jose A. Ceja
Answered
  • DUI & DWI Lawyer
  • Houston, TX
  • Licensed in Texas

A: "Operating" a motor vehicle is not a defined term in Texas so courts look at the "totality of the circumstances" to decide whether a person was really in control of a vehicle.

Sitting in your car and operating the radio is probably not operating. But most prosecutors don't care and use a much more strict (and probably incorrect) definition of operating a vehicle. You may have to set your case for trial and argue that you were not driving to a jury. Maybe you have a witness who can help.

Hope this helps and good luck.

Penny Wymyczak-White
PREMIUM
Penny Wymyczak-White
Answered
  • DUI & DWI Lawyer
  • Houston, TX
  • Licensed in Texas

A: Retain a lawyer Based on the facts you stated the State may not be able to prove the case BRD.

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