Defendant is in the 3rd lane of the freeway, passenger seat, and car is running. She's ASLEEP in the passenger seat.

Cop wakes her up and asks where the driver is. She responds, "you drove me here".

They search the freeway for a person walking and can't find one.

They call her friend in Austin, who says that the defendant dropped her off and then drove home.

I'm confident I can put her behind the wheel.

But are there any cases out there I should know about that are directly on point to this?

Thanks!

How is that a suppression hearing? A defendant has no right to test the sufficiency of evidence in a pretrial hearing. A suppression hearing is focused on the claim that some piece of evidence was obtained illegally.

See, e.g., State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (op. on rehearing).

See also these related threads:

Here, and

here.

Yes, yes, yes! It is so obvious that it is not a suppression hearing!

But still, I get nervous that I'm overlooking something because it seems to be so simple.

Thank you!

Check out Schragin v. State, 378 S.W.3d 510 (Ct. App. - Ft. Worth); 2012 Tex. App. LEXIS 6829.

JB is right (as usual) about a suppression hearing being the improper procedural device to test this evidence. But it goes further than that- since "operating" is not defined it is a question of material fact as to whether or not the defendant is operating. That's a question that can only be resolved by the jury or judge as trier of fact. It's simply not a question of law that can be addressed a a preliminary hearing.

If you haven't already done so, check out Richard Alpert's DWI Case Law Update (See "DWI RESOURCES" tab in the upper right section of this website). Several cases there that should help you, especially if your Judge should improperly entertain a Motion To Supress.

Also- let us know what happened!