Can You Get a California DUI on Private Property?

Posted by Jon Ibanez on February 8th, 2016

It is not uncommon for a person to be arrested on suspicion of DUI after having been only observed and stopped by law enforcement in a private parking lot. And the question arises, “can you get convicted of a California DUI if the officer never observes you driving on a public road and you are stopped on private property?”

There is a misconception that the California Vehicle Code only sets forth the rules of the road for public roadways.

Division 11 of the California Vehicle Code sets forth the “rules of the road,” if you will, which includes California’s laws against driving with a 0.08 blood alcohol content or higher and driving while under the influence. California Vehicle Code section 21001 states, “The provisions of [Division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.” The Code then goes on to state, “[t]he provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

The language of the Vehicle Code is admittedly vague. Ronald Dean Arnold Malvitz challenged the language of the Vehicle Code in the 1992 case of People v. Malvitz.

Malvitz was arrested for California DUI in a privately locked storage facility. Malvitz argued that since the DUI arrest occurred on private property and not on a public highway, California’s DUI law (section 23152 of the Vehicle Code) did not apply to him.

The California Court of Appeals though it necessary to clarify whether the language of the Vehicle Code was meant to include private property.

Prior to 1982 the vehicle code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court in People v. Malvitz relied on the earlier version of the California Vehicle Code to help clarify the issue. The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

Furthermore, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

Even though law enforcement not required to patrol or enforce California’s DUI laws on private property, I can tell you that they most certain will and do all the time.


  • I know of several cases where someone came out of a bar at closing time, decided they were too drunk to drive and so got into the back seat of their car in the bar’s private parking lot to sleep it off, later a cop came tapping on the window to wake them up and give them a DUI (because even though the car was never moved or even started, they had the keys in their pocket).

  • DUIBlog

    A person may be charged with a DUI in this situation, but most likely will not be convicted unless the prosecution can establish driving.

    Driving is established two different ways his this scenario: First, if the defendant admits to driving. Second, if the prosecution establishes with Circumstantial Evidence that the person drove the vehicle. Circumstantial Evidence will be things like (1) the key was in the defendant’s pocket; (2) the car was registered to the defendant; and (3) the driver’s seat, mirrors, etc. were adjusted to a driver of the size and shape of the defendant.

    On the other hand, if the defendant can establish that he/she had not driven the car—not even moved the car forward one inch— since drinking, the defendant would have a good chance at a judge or jury dismissing the matter.

  • Bill the eighth

    By that same failure of State logic, it would be possible to arrest anyone for DUI while they are sitting on their porch drinking with their car keys in their pocket or sitting on the table. You might beat it in court, but at what cost?

  • Javier Gonzo

    And if a driver coming from Mexico into the US at a California Port of Entry is arrested by an immigration agent for DUI at the primary booth, before the vehicle officially entered the United States and California. And the CHP officer that was called never witnessed the person driving or the vehicle as it had already been towed? Is this a misconception or can we fight the DUI. A 0.08% BAC was tested with the breatherliser?