Drunk Driving….Parked on a Private Driveway?

Posted by Lawrence Taylor on October 21st, 2011

The crime is driving a vehicle under the influence of alcohol.  In other words, the corpus delecti of the crime is: (1) driving (2) a vehicle (3) under the influence of alcohol.  In most states, there is a 4th element: the driving must be on a public roadway.  Simple, right?  

Yes, but to be charitable, cops seem to have a problem with the concept of common sense.  For the "driving" element, for example, see Convicted of Drunk Driving – Without Driving, Alcohol on Breath + No Driving = DUI, State Supreme Court: DUI Doesn’t Require Driving and How to "Drive" Under the Influence While Sleeping.  

And for a few examples of what constitutes a "vehicle", see DUI on a Horse?, DUI on a Foot-High Toy BikeDUI – While Walking a Bicycle, DUI in a Wheelchair, DUI on a Scooter and News From the Front (driving a Zamboni on an empty ice rink).

This is not a joke, folks, these are just a few of the "drunk driving" convictions in MADD’s "War on Alcohol"….oops, I mean "War on Drunk Driving".  And in the news a few days ago:


Nebraska Supreme Court: No DUI in a Private Driveway

Omaha, NE.  Oct. 18
– Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to music in an undriven car parked on his father’s driveway while drunk. The Nebraska Supreme Court on Friday used the case to clarify that the charge of driving under the influence of alcohol (DUI) does not apply in a personal driveway.

When McCave did not listen to his father, John McCave, who told him to go away, the police were called. Officers arriving at the scene noticed McCave was drunk in a car and asked him to take a breath test. McCave refused, saying he had not driven anything. Officers proceeded to pile on charges.

"I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle," Officer Benjamin Faz testified.

McCave was hit with DUI, refusing a breath test, possessing an open container of alcohol in a vehicle, trespassing and resisting arrest. The officers did not bother asking Susan McCave whether she had been the one to invite her stepson to the house that night.

Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave. They also insisted McCave’s car was on public property because it partially overhung a sidewalk. The high court explained that DUI statues do not apply to a person on private property not open to public access…

The court blasted the prosecutor’s argument that McCave’s car was subject to the DUI statute because it was parked at least in part on public property.

"Nor do we think that the driveway’s characterization as private property without public access changed just because McCave’s vehicle overhung the sidewalk," Connolly wrote. "We do not believe the legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk."

The court also discarded the prosecution’s insistence that McCave was guilty of DUI simply because the police officer claimed the man had stated he was "leaving."

"Obviously, if McCave had committed an offense in front of the officers, they would have had grounds for an arrest," Connolly wrote. "But his statement that he was leaving, even if his hand was on the key in the ignition, showed only that he had considered driving but changed his mind."

The high court went on to blast the sloppy police work that led to McCave’s conviction.

"No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness," Connolly wrote. "Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct. As previously discussed, it is not unlawful for a person to be intoxicated in a vehicle on private property not open to public access."


So let’s see….The guy was not driving.  He was on private property.  In fact, he was doing nothing wrong at all.  But he’s illegally arrested and charged with five criminal  offenses: drunk driving, refusing a breath test, possessing an open container (on private property), trespassing (!) and resisting arrest (for arguing that he hadn’t driven?).  I guess that’ll teach him respect for the law! 

Welcome to the "War on Drunk Driving".


(Thanks to Jerry Scott.)
 

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