The videos are everywhere: a Tesla cruising down the freeway, the driver visibly asleep, Autopilot doing the work. Several of those drivers have been arrested for DWI, and the first thing they say is "I wasn't driving." Brian Foley explains in this video why Texas law disagrees.
"Operate" is broader than "drive"
Penal Code § 49.04 prohibits operating a motor vehicle while intoxicated. The Code does not define "operate," and the Court of Criminal Appeals in Denton v. State (1995) adopted a broad test: a person operates a vehicle when they take action to affect the functioning of the vehicle in a manner that would enable its use. Under that standard, Texas courts have upheld DWI convictions for people sitting in a parked car with the engine running, people asleep at a stop light, and people whose car was in gear but not moving.
Autopilot makes it easier, not harder
A Tesla on Autopilot requires the driver to engage the system, set the speed, and remain in the driver's seat with periodic hand-on-wheel input. Every one of those is an action "affecting the functioning of the vehicle." The fact that software is steering between those inputs does not change who put the car on the road and who is legally responsible for it — Tesla's own terms say the driver must remain attentive and ready to take over. No Texas court has accepted driver-assist technology as a defense to the operating element, and the legislature has not created one.
The real defenses
The same as any other DWI: the lawfulness of the stop (an officer needs reasonable suspicion — though a sleeping driver on a freeway supplies it), the reliability of the intoxication evidence, the field sobriety tests, and the chemical result. See our Houston DWI attorney page.
The future
Fully autonomous vehicles with no driver's seat controls may eventually force the question of whether a passenger can "operate" anything. For now, if you are in the driver's seat of a moving vehicle in Texas and you are intoxicated, you are committing DWI — no matter what the car is doing.
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