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The Water Cooler
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How can you get a DUI on private property?
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<blockquote data-quote="Zaphod Beeblebrox" data-source="post: 3380665" data-attributes="member: 4606"><p><em>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:</em></p><p></p><p>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, <strong>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</strong>, who: (then goes into all the intoxication language, which isn't important here).</p><p></p><p><em>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.</em></p><p></p><p></p><p><strong>STATE v. SILAS</strong></p><p><strong>2020 OK CR 10</strong></p><p></p><p><em>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.</em></p><p><em></em></p><p><em>Here is the analysis:</em></p><p></p><p>¶10 The same result was reached almost ten years later in <em>Fenimore v. State</em>, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008" target="_blank">2003 OK CR 20</a>, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008" target="_blank">78 P.3d 549</a> where <strong>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.</strong> <em>Fenimore</em>, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008" target="_blank">2003 OK CR 20</a>, ¶ 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." <em>Fenimore</em>, 2003 OK CR. 20, ¶ 7, 78 P.3d at 551.</p><p></p><p>¶11 <strong>The Legislature responde</strong>d. 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. <strong>Because this language did not exist at the time <em>Haws</em> 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</strong>. <em>See Luna-Gonzales</em> <em>v. State</em>, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=483813" target="_blank">2019 OK CR 11</a>, ¶ 9, 442 P.2d 171, 174 (recognizing subsequent statutory amendments "impliedly" overrule case law with conflicting interpretations).</p><p></p><p>¶12 If anything, <em>Haws</em>, 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." <em>State v. Iven</em>, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=474685" target="_blank">2014 OK CR 8</a>, ¶ 14, <a href="https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=474685" target="_blank">335 P.3d 264</a>, 269. After <em>Haws </em>and <em>Fenimore</em>, <strong>the Legislature expanded the reach of the statute and by doing so made clear that private property was not off limits</strong>. What the Legislature did implicitly through statutory amendment, we now do explicitly and overrule <em>Haws </em>and <em>Fenimore</em> to the extent those cases are inconsistent with this opinion.</p><p></p><p>¶13 Based on the testimony of first responders, here we are faced with a pathway -- <strong>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.</strong></p><p></p><p><strong></strong></p><p><strong></strong></p></blockquote><p></p>
[QUOTE="Zaphod Beeblebrox, post: 3380665, member: 4606"] [I]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:[/I] 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, [B]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[/B], who: (then goes into all the intoxication language, which isn't important here). [I]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.[/I] [B]STATE v. SILAS 2020 OK CR 10[/B] [I]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:[/I] ¶10 The same result was reached almost ten years later in [I]Fenimore v. State[/I], [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008']2003 OK CR 20[/URL], [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008']78 P.3d 549[/URL] where [B]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.[/B] [I]Fenimore[/I], [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=438008']2003 OK CR 20[/URL], ¶ 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." [I]Fenimore[/I], 2003 OK CR. 20, ¶ 7, 78 P.3d at 551. ¶11 [B]The Legislature responde[/B]d. 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. [B]Because this language did not exist at the time [I]Haws[/I] 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[/B]. [I]See Luna-Gonzales[/I] [I]v. State[/I], [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=483813']2019 OK CR 11[/URL], ¶ 9, 442 P.2d 171, 174 (recognizing subsequent statutory amendments "impliedly" overrule case law with conflicting interpretations). ¶12 If anything, [I]Haws[/I], 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." [I]State v. Iven[/I], [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=474685']2014 OK CR 8[/URL], ¶ 14, [URL='https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=474685']335 P.3d 264[/URL], 269. After [I]Haws [/I]and [I]Fenimore[/I], [B]the Legislature expanded the reach of the statute and by doing so made clear that private property was not off limits[/B]. What the Legislature did implicitly through statutory amendment, we now do explicitly and overrule [I]Haws [/I]and [I]Fenimore[/I] 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 -- [B]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.[/B] [B] [/B] [/QUOTE]
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