top of page
  • Writer's pictureJustin Sparks

Is Physical Control Better Than a DUI?

Under Texas DWI laws, it is possible for a person to be arrested for a DUI even if they weren’t driving at the time the officer witnessed their alleged offenses. This is thanks to a legal condition referred to as actual physical control.

Equally, if an individual was not driving at the time of the offense, then they can also use the lack of evidence as a defense.

Anyone who has been arrested for DWI in the Texas area should contact one of the best DWI law firms in Fort Worth, Sparks Law Firm immediately.

Actual Physical Control and DWI in Texas

Actual Physical Control and DWI in Texas

A common myth among the residents of Texas is that in order to be charged and convicted of a DWI, the law enforcement officer actually has to catch the individual driving.

This is because the Texas Penal Code specifically states in section 49.04 that it is an offense to operate a mobile vehicle while intoxicated in a public place. However, it is incorrect for a person to assume that the definition of “operating” simply only refers to driving the vehicle.

The legal definition of operating has a different interpretation when it is applied to DWI laws, and according to the Texas Administrative Code, to operate a mobile vehicle means driving the vehicle, but it can also mean being in actual physical control of the vehicle.

Actual physical control has several elements that are required to be proved and, therefore, can be much more complicated to prove beyond reasonable doubt when compared to an officer arresting a person for DWI after seeing them driving on Texas roads. This is similar to DUI by consent and an APC charge.

Therefore, if a person was not driving, then the defense regarding the absence of actual physical control can be very effective. The experienced DWI attorneys at Sparks Law Firm are able to review the facts of their client's cases and determine whether or not a defense strategy would be effective in their specific circumstances.

Elements of Actual Physical Control (APC) in DWI Cases in Texas

Apart from it being possible for a person to be arrested for DWI even if they are not driving their motor vehicle, actual physical control can cause a person a DWI arrest even when they had no intention of driving their vehicle.

To give an example, if a person unexpectedly drank too much while out and was not able to arrange a ride home, then they may be arrested for sleeping in the back seat – even if their keys were outside - of their vehicle. This is due to the fact that the individual had the exclusive present ability and physical power to move, park, operate, or direct the use or non-use of their vehicle at that moment.

On the other hand, being able to prove this offense will vary on a case-by-case basis in Texas. There are a lot of elements to be considered, which the prosecution will have to prove to the jury or judge beyond any reasonable doubt in order for an individual to receive a conviction for actual physical control.

The experienced defense attorneys at Sparks Law Firm can expose the cracks in their client's case and show evidence that was gathered against their client's rights which will weaken the prosecution’s argument.

To make things easier, the elements of actual physical control in DWI cases in Texas are listed below:

  • The location of the defendant – in or around the vehicle

  • If the key was in the defendant’s actual possession, or whether it was close enough for them to quickly obtain actual possession

  • Whether or not the defendant was physically capable to start the engine and move the vehicle

  • If the vehicle was operable or had recently been operated

Find a Good Defense Attorney for Actual Physical Control at Sparks Law Firm!

Anyone who has been arrested for and charged with DWI as a result of being in actual physical control of their motor vehicle in Texas should contact an experienced DWI lawyer at Sparks Law Firm as soon as possible.

These lawyers have years of experience in using the absence of evidence of actual physical control as a defense strategy for their client’s charges to be dismissed or reduced. A client’s first consultation is completely free, so they should call these lawyers today at (817) 381-7846.


bottom of page