The Supreme Court of Nebraska Rules No DUI in a Private Driveway
Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to loud music in an undriven car parked on his father’s driveway while drunk. The Nebraska Supreme Court on Friday October 14th, 2011, used the case to clarify that the charge of driving under the influence of alcohol (DUI)
does not apply in a personal or private driveway.
This all started in 2007 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
possessing an open container of alcohol in a vehicle,
trespassing and resisting arrest. The officers did not bother asking McCave's mother if she had invited him to the house.
Prosecutors argued that theDUI 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 court explained that
DUI statutes 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 ofDUI 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 supreme 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 police 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 in review, this guy was not driving at all... He was on private property (His Dad's residence). 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, trespassing, and resisting arrest. This case was in Nebraska, but I've seen plenty of completely ridiculous cases come across my desk in Kansas lately as well. The fact is that Police across the nation are ramping up their "war" against
drunk driving not to make the roads safer, but in order to gain revenue for their cities and states....
If you or someone you knows runs into any trouble with the law in Kansas contact
Gigstad Law Office LLC for a free consultation about your
criminal defense case.
Gigstad Law Office LLC serves clients in all of Kansas, and primarily in Overland Park, Prairie VIllage, Mission Hills, Olathe, Leawood, Lenexa, Olathe, Mission, Shawnee, Kansas City, and Johnson and Wyandotte Counties.