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I have a black SUV. I only say this to illustrate the fact that this behemoth, which serves no practical purpose in my childless life, gets filthy as soon as the dense particulate that we call air in West Texas touches it. So I go to the car wash. A lot. The thing is, the car wash I frequent is right next to a liquor store, which I also patronize. I particularly like to grab a six-pack of some overpriced uppity swill and then hit the wash. So here’s my question: Assuming the car wash is cool with it—and I don’t imagine the community college potheads working there would care—is it illegal to drink, and finish, my numbing elixir while going through the car wash tunnel? Am I drinking and driving?
A quick checklist for your last question:
Am I drinking? Yes, you are drinking.
Am I driving? Given that a car wash is like that amusement park ride you loved when you were seven where you got to steer an antique car along a giant guardrail, yes, you are also driving.
Congratulations. You are “drinking and driving,” which is a meaningless phrase in the eyes of Texas law.
Now, to the question you’re really asking: Am I breaking any Texas law by drinking a six-pack of crisp lager in my giant black SUV (which is totally the wrong color SUV for the punishing Texas sun, by the way) while going through a car wash?
Let’s get wonky and glean a few possibilities in Texas (which does, contrary to prevailing public belief, have law), because there are a lot of complexities there. And I’m going to skip the penis-to-vehicle-ratio jokes, because a) they’re a cliché, and b) if they were true, 90 percent of the male population in Texas would insist that size doesn’t matter.
Under Texas law, you commit a DWI offense if you are intoxicated while operating a motor vehicle in a public place. (Other criminal offenses in Texas: failing to subtly pronounce the apostrophe in y’all or implying that, just maybe, beans are what make chili not just a bowl of spicy meat poop.) The rule of thumb often used by Texas courts is that a “public” place is somewhere substantially accessible to the public. So unless your car wash is an exclusive private club that only accepts high-caliber folks who crave an IPA-infused slo-mo joyride through a dark, wet tunnel, you’re in a public place.
Here’s the important question for DWI: Will you become intoxicated in the few minutes between your telling the attendant that you want “The Works” (with piña colada air freshener) and your SUV emerging from the exit? If you shotgun those six beers—which is not what the brewmaster of Overpriced Uppity Swill Double IPA Porter Triple Blend intended—and you’re a person of average size and constitution, I don’t think so. But you will be soon. More on this in a little bit.
You generally can’t drink in public. See those signs posted in front of the liquor store, the car wash, and the attached gas station that say, “Consumption of Alcoholic Beverages on Premises is Illegal”? Further, it’s an offense to knowingly possess an open container of alcohol in a motor vehicle’s passenger area in public, regardless of whether the vehicle is being operated, or is stopped or parked.
Not only are you knowingly possessing an open container in your car-wash fantasy, you expressly intend to open and consume six containers of your favorite stout. And don’t think that “passenger area” gets you out of trouble just because you’re in the driver’s seat—that term applies to any area of the car designed for the driver and passengers where you can reach, say, alcohol, also know as the “grab area.” That theoretical “passenger area” does, however, exclude a locked glove compartment. So if you can Houdini yourself into there with your beer, no problem, in theory.
If the cops can’t get you under DWI or open container, they may try public intoxication, but they’re going to have to prove that you might endanger yourself or another person. Which is a tough call at the exact moment you’re emerging from your one-man Carwashtoberfest. So try to keep a straight face, but the dangerous part of your journey is only beginning.
For practical purposes, it’s not about what happens inside the safe cocoon of the car wash, but what happens when you leave it. “Once the vehicle exits the car wash machine, that’s where you need to be concerned about what could happen,” notes Mark Thiessen, a Houston-based lawyer for the Thiessen Law Firm, chair of the DWI Committee for the Texas Criminal Defense Lawyers Association, and possessor of an excellent lawyer photo. You might not technically be intoxicated inside the car wash or just outside it, but very soon, that much beer is going to hit you faster than … well, it’ll hit you exactly as fast as six beers would hit you anywhere else. Once that SUV is back in your control, you’re an easy target for a DWI violation. And you better not have any open beer cans left. “If you get a DWI, adding an open container violation means a mandatory three days in jail,” Thiessen notes.
The reality is, an officer can arrest you for anything he or she is able to and wants to; whether it’s a valid arrest is a question of law that will be decided ... later. Much later. After it has cost you an enormous amount of money. (If you are arrested, I hope you listened to this episode of my Unwonk Podcast that talks about what to do next.) Even if you’re completely innocent and broke no laws, you’d best decide in advance whether your time, reputation, and money are worth the risk. Thiessen’s suggestion: “Maybe you should call one of those mobile detailers to come to your house. Imagine the quality-level detail you could get for the $10,000 you wouldn’t have to spend fighting a DWI charge.”
Finally, regardless of whether or not it’s legal, don’t be this guy.
Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. I really like people I quote here, but that doesn’t mean I endorse them, because ... lawyer. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.
Art by Sam Woolley.
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