Short answer: You cannot be convicted of DWI in Texas just for riding in a vehicle. Prosecutors must prove, beyond a reasonable doubt, that a person operated a motor vehicle while intoxicated in a public place. A passenger can still face other charges that sometimes arise during a DWI stop, which are explained below.
Why this matters: If you were a passenger during a DWI stop, what you say and do can affect whether you get cited or arrested for a separate offense. Knowing where the lines are helps you protect yourself and make smart choices.
What DWI Means in Texas
Texas law makes it a crime when a person is intoxicated while operating a motor vehicle in a public place. Intoxicated includes either an alcohol concentration of 0.08 or more or not having the normal use of mental or physical faculties because of alcohol, drugs, or a combination. The statute does not define operate. Texas courts use a common sense totality of the circumstances test. If someone takes action to affect a vehicle’s functioning in a way that enables its use, a jury may find they operated the vehicle.
Key point about burden of proof: It is not the driver’s job to prove sobriety. In every criminal case, including DWI, the State must prove every element beyond a reasonable doubt. You are presumed innocent.
Can a Passenger Be Charged With DWI?
Typically no. A passenger is not operating the vehicle. Unless the evidence shows the passenger actually exercised control over the vehicle’s functioning, the DWI charge targets the driver. Rare edge cases include a passenger who grabs the steering wheel or turns on and controls the vehicle in a way that enables use. Those facts may let prosecutors argue the passenger was actually the operator.
Charges Passengers May Face During a DWI Stop
Public intoxication. An officer may arrest someone who appears in a public place while intoxicated to the degree they may endanger themselves or others. For adults, a conviction is a Class C misdemeanor punishable by a fine up to 500 dollars. Officers can release an eligible adult to a responsible person or a sobering facility instead of arresting when safety allows.
Open container in a motor vehicle. A person commits an offense by knowingly possessing an open container of alcohol in the passenger area of a motor vehicle on a public highway, whether the car is moving, stopped, or parked. This is a Class C misdemeanor. Limited exceptions apply, such as passengers in hired vehicles and people in the living area of a recreational vehicle.
Interfering or resisting. Separate charges can follow conduct during the stop. Interference with public duties covers criminally negligent interruption, disruption, or impeding of an officer performing lawful duties. Resisting arrest, search, or transportation requires the use of force against an officer. Hindering apprehension or prosecution penalizes warning, concealing, or aiding another to avoid arrest. Tampering with or fabricating evidence can apply if someone destroys, alters, or conceals things like open containers or drugs.
Under 21. If a passenger is a minor, alcohol specific offenses may apply, including consumption by a minor and possession of alcohol by a minor, each punished as provided in the Alcoholic Beverage Code.
What Keeps Passengers Out of Trouble
Cooperate respectfully and protect your rights. Provide identifying information when lawfully requested. You have the right to remain silent and to ask for a lawyer. Avoid physically interfering with officers or with the investigation. Do not handle open containers in the passenger area while on a public highway. If you are under 21, do not consume or possess alcohol except in the limited circumstances the law allows.
How We Help
Our team navigates the fine print in intoxication and alcohol related cases. If you were a passenger during a DWI stop and were cited or arrested, we can evaluate whether the State can actually prove every element and whether any stop, search, or arrest issues give you leverage to dismiss or reduce charges.
Talk to a lawyer today. You can also read our guide, What To Do After a DWI Arrest or send a message on our Contact Us page. We serve College Station, Waco, and nearby areas across Texas.