Texas Stamp


PD-0276-22 08/24/2022

“Does an officer have probable cause to arrest a person passed out in a moving lane of traffic, with the engine running, coupled with several signs of intoxication, for DWI, despite no one visibly seeing that person driving?”

Espinosa was found by a passerby asleep or passed out in the driver’s seat of her car parked in a line of cars waiting to pick up children from school. The keys were in the ignition, and the engine was running. Fearing a medical emergency, the passerby banged on the windows while another woman in line called 911. Espinosa came to. She was unresponsive at first, then difficult to understand. She asked someone to take her home and had difficulty walking upright. When Espinosa was told 911 was called, she became panicky and headed back to her vehicle. Someone took the keys from the ignition before Espinosa got there. Soon after, an officer arrived. He spoke to multiple witnesses before approaching Espinosa. The officer observed she had slurred speech, was disoriented, was confused about where she lived, was unsteady on her feet, had “glossy” red eyes, and had a smell of alcohol coming from her body. Espinosa told him she had a son at a nearby middle school, and had earlier told a teacher she was headed to a middle school. Espinosa refused to take standardized field-sobriety tests and was arrested for DWI. Four empty wine bottles were found in her vehicle.

Espinosa challenged her warrantless arrest. The trial court agreed with her. Citing multiple sufficiency cases, the trial court concluded a suspect must do more than sleep in a car while intoxicated to be guilty of DWI. Because the State “fail[ed] to establish the Defendant ‘operated’ a motor vehicle as required for the offense of driving while intoxicated[,]” there was insufficient probable cause.

The court of appeals affirmed. It held, “The circumstantial evidence was insufficient to establish a temporal link between [Espinosa]’s intoxication and her driving.” Like the trial court, it relied primarily on sufficiency cases. Justice Jewell dissented. Because the State’s burden was to show probable cause rather than guilt beyond a reasonable doubt, he said, the evidence was more than sufficient to allow a reasonably prudent person to believe Espinosa had been driving while intoxicated.

The State, in its petition, picks up on Justice Jewell’s dissent. It presents just a sample of the myriad cases holding that probable cause (and even conviction) do not require that anyone observe the defendant drive while intoxicated. Viewed in the proper light, the facts speak for themselves and present probable cause for arrest on suspicion of DWI.

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