I am working on a case where the defendant was arrested for DWI, but no one saw him driving. He was found alone, at the scene of an accident with two vehicles. He was not the driver involved in the accident, but was attempting to clean it up. Under Warrick v. State, the warrantless arrest would be valid if he could have been arrested for PI. The only evidence that I have that the defendant was a danger to himself or others is the fact that he failed the FSTs. Here's the question: Under Warrick, do I have to show more (such as an accident) for the arrest to be valid?

If you have the elements of a valid public intoxication, and there is probable cause to believe that the defendant was DWI, you have a valid warrantless arrest and can charge him with DWI.

Certainly a number of the cases have involved the situation where the suspect had already "shown himself to be a danger" by being involved in an accident. E.g., Mathieu, 992 S.W.2d at 728. But that is not the only set of facts which would give rise to a reasonable belief that danger was presented. E.g., Beard, 5 S.W.3d at 886. The fact that the suspect apparently intends to drive away in the near future is enough. Warden, 895 S.W.2d at 755; Ross, 999 S.W.2d 468.

Come on, no one saw him driving the car. Isn't one of the elements of "driving" while intoxicated DRIVING? Did I miss something here? He doesn't have to be a witness against himself. And, the state will not be entitled to the presumption that he was driving.
As a defense attorney, I would be asking myself if the officers had enough to Terry stop the guy for DWI or PI to begin with. While he failed the FSTs which may be enough, he did appear on a crime scene and assist in the matter. How are you going to counter the presumption that he wasn't a danger to himself, and was aiding (unsolicited?) his fellow citizens?
I'm not trying to be unduly harsh, just playing devils advocate.

The arrest only requires probable cause for a offense that is a breach of the peace (under strange Texas law). Sounds like there is sufficient evidence to meet that standard.

Now, at a trial, obviously the state has to prove the defendant was driving when he was intoxicated. Mere presence is probably not enough to justify an inference of driving, but there are other circumstances that can be presented, e.g.:

It was the defendant's vehicle (by registration);

The defendant's blood is on the windshield (by DNA);

The defendant has unusual stripes on his chest (by seat belt straps - I saw this one on CSI);

The defendant's face was injured by the air bag (or perhaps the air bag has defendant's DNA implanted on it);

The defendant made an admission to an insurance agent;

The defendant just left work and was the only one seen driving;

And a hundred other ways....

Sure, John is right that the circumstances could dictate whether he was the driver. But in this case, you stated he WASNT one of the drivers involved in the wreck. Therefore, you won't find identifying marks/scars/DNA. What else do you have. Again, the original question, why are the police detaining a man for FST's to begin with. They are going to have to be able to articulate that.

If the cops get there, there are two empty, wrecked cars, and one obviously uninvolved car, and one guy who gives outward appearances of being intoxicated, that certainly seems like enough to begin a Terry stop. It may seem like bad policy on the one hand to dissuade samaritan behavior (if that's all it really was), but this prosecution won't frighten sober would-be helpers. None of us were there, but the officers were, and I'm betting they felt like they couldn't in good conscience put this person back behind the wheel. Were the officers not able to get any pre-arrest statements from the suspect to indicate driving?

Is there anyone that thinks the police wouldn't get sued if they released the good samaritan/drunk driver and he caused another accident?

Apparently I gave the wrong impression. The defendant wasn't so much the good samaritan, but was attempting to cover the tracks of a family member who'd been driving while intoxicated. Had he succeeded, the police would never have known who was involved in the accident.

And, yes, the police did receive prearrest statements from both the defendant and the family member, that the defendant had been driving.

Well, his statements putting him behind the wheel are good. The clarification clears up the fact scenerio. Why not tampering with evidence?

And, again, thanks for keeping the forum open. You guys have the best legal conversations on the web.

Especially if you get your conviction first on the relative who crashed their car, likely wouldn't too much trouble getting convictions for dwi and tampering. Only question I have as I read 37.09 is, was there an investigation "pending or in progress"? I'd guess if the drivers involved in the crash had already been carted off, then the police were likely already dispatched, thus beginning their investigation of the accident.