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How can you get a DUI on private property?

Discussion in 'General Discussion' started by ratski, Jun 18, 2020.

  1. Cohiba

    Cohiba Sharpshooter

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    Told by whom? Can the police be the ones to ask/state? Don't know Georgia law, didn't pull any Georgia Law Library/Casetext Online Law Library nor Georgia Law Database. I stand chastised and rebuked.
     
  2. bigfug

    bigfug Sharpshooter

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    Playing Devil's advocate here but.....Who's to say he wasnt trespassed and never heard it because he was asleep?
     
  3. HJB

    HJB Sharpshooter

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    It doesn't matter, he won't be back...they burned the place down.
     
  4. Zaphod Beeblebrox

    Zaphod Beeblebrox Sharpshooter

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    Since the OP inquired about a DUI on private property, I thought I'd drop the DUI statute (Oklahoma, not GA didn't want to look that hard and most state statutes are very similar). Keep in mind, this is just the beginning of a very long statute:

    A. It is unlawful and punishable as provided in this section for any person to drive, operate, or be in actual physical control of a motor vehicle within this state, whether upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings, who: (then goes into all the intoxication language, which isn't important here).

    This language has raised the issue of private property, in particular driveways, with some courts finding DUI isn't possible in a private drive. However, the OCCA just released yesterday an opinion shooting that idea down.


    STATE v. SILAS
    2020 OK CR 10


    Silas was intoxicated and ran over her husband in their own driveway, killing him. A lower court had demurred, or essentially dismissed the case because it was on a private driveway (can't get much more private than your own driveway). The court determined legislative changes made DUI possible even in your own driveway. And the older language still said DUI was possible in a public parking lot, such as a Wendys. Obviously, GA law may be different.

    Here is the analysis:


    ¶10 The same result was reached almost ten years later in Fenimore v. State, 2003 OK CR 20, 78 P.3d 549 where we dismissed a conviction for driving under the influence because the prosecution failed to prove the conduct occurred on a highway, turnpike or public parking lot. Fenimore, 2003 OK CR 20, ¶ 3, 78 P.3d at 550. We noted the narrow scope of the statute, and invited the Legislature to make a change: "If the language of Oklahoma's driving under the influence statute needs to be amended -- whether by broadening the language or by making it an all inclusive statute to prohibit driving under the influence anywhere in the State, it must be done by the Oklahoma Legislature." Fenimore, 2003 OK CR. 20, ¶ 7, 78 P.3d at 551.

    ¶11 The Legislature responded. It amended Section 11-902(A) in 2004 by adding language expanding the scope of the statute and making it clear that private property was included within that scope. Specifically, the Legislature added: "whether upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings." 2004 SB 1407, c. 548, § 1 emerg. eff. June 9, 2004. Because this language did not exist at the time Haws was decided, it cannot be said, as Appellee suggests, that the case continues to stand for the proposition that the reach of Section 11-902 does not extend to private driveways. See Luna-Gonzales v. State, 2019 OK CR 11, ¶ 9, 442 P.2d 171, 174 (recognizing subsequent statutory amendments "impliedly" overrule case law with conflicting interpretations).

    ¶12 If anything, Haws, which dismissed the prosecution of someone found on a private driveway, cuts against Appellee's position. "[W]e must presume that the Legislature was aware of our decisions and contemplated them in amending the statute." State v. Iven, 2014 OK CR 8, ¶ 14, 335 P.3d 264, 269. After Haws and Fenimore, the Legislature expanded the reach of the statute and by doing so made clear that private property was not off limits. What the Legislature did implicitly through statutory amendment, we now do explicitly and overrule Haws and Fenimore to the extent those cases are inconsistent with this opinion.

    ¶13 Based on the testimony of first responders, here we are faced with a pathway -- whether it is referred to as a private road or a driveway -- extending from a highway to a single-family residence. Under these circumstances, we have little difficulty finding Section 11-902(A) plainly applies.


     
  5. dennishoddy

    dennishoddy Sharpshooter

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    Just an FYI to those thinking they are fully aware about trespass laws in Oklahoma.
    There are several different laws depending on what the purpose of the property is being used for and who is allowed on the property without permission.
    Currently in Ok all land is considered posted be there signs or not.
    Different regs for farm and home, different regs for “critical infrastructure” and so on.
    Folks like surveyors and folks doing work for a political party have free access to any farm/home/garden.
    Different trespass laws and people that trespass to snag a few ears of corn from a field or engage in theft of equipment etc fall under a different set of laws.
    For your reading pleasure:


    https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=446520
     
  6. The Scribe

    The Scribe Marksman

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    That’s sort of an oxymoron isn’t it? I mean if your that blasted, you can’t control anything. You have zero physical control.


    Sent from my iPhone using Tapatalk
     
  7. Gunbuffer

    Gunbuffer Sharpshooter

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    True fact. You can murder someone on private property. As long as they don’t file a complaint before they expire
     
  8. HeyEng

    HeyEng Sharpshooter

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    I am only assuming since none of the reports I have read showed that he was told to leave by an agent of Wendy's. I was speaking GENERALLY to what Georgia law is in regards to trespass.
     
  9. aarondhgraham

    aarondhgraham Sharpshooter

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    The same way they can charge you with a DUI if you are trying to sleep it off in the back seat of your car in the bar parking lot.

    My baby brother got a DUI under those exact circumstances,,,
    He was in the back seat and had put the keys in the glove compartment.

    The cops and courts can do any dang thing they please,,,
    Until someone with some legal or legislative horsepower challenges them.

    Aarond

    .
     
    amadera likes this.

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