DUI on Private Property

People often think that they cannot be charged with drunk driving if they are on private property. Unfortunately, this is not necessarily the case.

Section 625 of the Michigan Vehicle Code states that it is unlawful to operate a motor vehicle in any place that is open to the public or accessible to other vehicles if you are impaired or intoxicated. In other words, the simple fact that you were on "private property" will not stop police from investigating and arresting you for drunk driving.

Most roadways are publicly owned, meaning they are owned and maintained by the government. The driveways that lead to our homes, as well as the paved areas and corridors that connect commercial properties, are generally privately owned. In other words, when you drive on your own or someone else's driveway or within the parking lot of a business, restaurant, or bar, you technically are driving on private property. However, these areas are open and accessible to other vehicles, which means they are fair game for drunk driving stops.

Like all elements of DUI, the element of "open to the public" is very broadly construed. A case exactly on point, and one that gained national attention, is a case that arose out of the 35^th District Court in Plymouth Michigan. In this case the defendant, a Gino Rea, never left his driveway. In fact, all he did was drive his car out of his garage. The District Court found that this was a place open to the general public. The Court of Appeals disagreed and reversed the conviction. The Michigan Supreme Court however agreed with the District Court, finding specifically that because Mr. Rea did not have anything preventing people from driving on his driveway. Because of this the driveway was generally open to the public.

Cases involving this issue are very fact specific. If Rea had a chain or gate or another impediment erected across the driveway the outcome would have been different. The same type of factual analysis is applicable for other areas upon which a person can drive. What about a backyard? A baseball field at a school? A large portion of vacant land in northern Michigan? When such a fact question exists, your attorney can first ask the judge to dismiss the case. If this motion is not successful, then the next step would be for the jury to make the determination. When the case still results in a conviction, an appeal can be filed. However, a court of appeals will not overturn a jury verdict when the only basis is a mistake of fact. Only mistakes of law can be corrected on appeal.

When it comes to defending an operating while intoxicated (OWI) charge, the fact of whether it occurred on private or public property has no real bearing on the case. Rather, the prosecution will have to prove that the area in which you were driving was open and accessible to the public. If the state cannot show this beyond a reasonable doubt, then the judge or jury should not find you guilty of the charge.