Defending DWI Arrests on Private Property

DWI charges often occur on or about public highways, when an officer observes erratic driving or traffic violations and pulls the vehicle driver over to the curb for sobriety testing. Officers with reasonable suspicion of intoxicated driving have the legal authority to make a traffic stop.

But what about a DWI arrest on private lands, such as one's own property or, if not one's own, then on privately owned commercial property? Private lands certainly have driveways, parking lots, and other locations for vehicle use. Doesn't one have some constitutional right to individual liberty, to do as one wishes on private lands?

What DWI Law Says About Where DWI Must Happen

Make no mistake: DWI arrests do frequently occur on private lands. The reason has to do with a Texas DWI's definition. Texas Penal Code Section 49.04(a) defines a DWI violation as when "the person is intoxicated while operating a motor vehicle in a public place." Notice the "public place" language. The statute could have said "public property," "public highway," or "public lands," but instead, it said "public place".

The Texas legislature used the DWI statute's "public place" language, surely expecting Texas's appellate courts to interpret the statute's deliberately ambiguous phrase. Texas courts have indeed interpreted the DWI statute to include certain private lands "to which the public has access." The Texas legislature didn't make a mistake. Its DWI statute Penal Code Section 49.04 wasn't sloppy drafting. The Texas legislature simply faced a problem that law has in trying to fashion sensible, clear, and consistent rules to apply in a very messy world. The phrase "public place" has allowed Texas courts to draw fine lines balancing the public's interest in reducing DWIs against the privacy interests of individuals using private lands.

We're in America, where vehicles go just about everywhere, and people do just about everything—live, shop, eat, bank, watch movies, drink alcohol, and you name it—in their vehicles. The motor vehicle embeds itself that deeply in American culture. Because drivers operate vehicles that frequently on private lands, including while intoxicated, the legislature in Penal Code Section 49.04 had to find some language that would define a reasonable scope for protecting vehicle occupants and pedestrians from drunk-driving hazards, balanced against privacy rights and liberty interests on private lands. "Public place" was the legislature's solution, as the courts would then apply and interpret it.

So What Is a "Public Place" for a DWI Violation?

The question of what Penal Code Section 49.04 intends to reach by the phrase "public place" is exactly why DWI defendants facing that issue need legal counsel from an experienced lawyer. Attorney Doug Murphy wants you to know your rights. You should have experienced representation for any DWI charge but especially for one that involves a question over the DWI arrest's location. Here, though, is an outline of this close question:

Texas is a common-law state, meaning that Texans trust their courts to apply laws like the DWI statute on a case-by-case basis, refining a statute's scope by the accumulation of case decisions. Yes, Penal Code Section 49.04 defines DWI. But its "public place" element is obviously open to interpretation, an interpretation that the Texas legislature has plainly entrusted to Texas's courts.

So what have the courts said to define a "public place?" Skilled lawyers interpret case law. One thing that Texas's courts have made clear is that who owns the land, whether the public ownership through government or a private landowner, is not the deciding factor. Drivers can commit DWI violations on publicly or privately owned land. The key factor is instead, whether the public has "access to" the land. Look for "public access" to define the DWI crime's necessary element of operating a motor vehicle in a "public place."

Examples of Public Places on Private Lands for DWI Arrest

A private parking lot is the classic example of privately owned land to which the public has access with their motor vehicles. Parking-lot businesses advertise and attract public motorists to their drives, lots, and multi-level structures, firmly establishing them as a public place with public access. Thus, intoxicated drivers can face DWI arrest for operating their motor vehicle in a private parking lot.

We may tend to think of parking spots, lots, and structures as primarily public land. But in fact, city zoning ordinances require private landowners to build and maintain abundant private parking to accommodate whatever use they make of their land. One study reports that parking comprises as much as forty percent of some cities' land. That huge amount of private land devoted to public parking makes a private-land DWI arrest much more likely.

Driveways on private lands are another example of what the DWI statute might consider a "public place." Certainly, driveways on privately owned retail and other commercial properties that lead to parking lots for public use are "public places" under Texas's DWI statute. Yet, in a much closer call, police and prosecutors may also argue that private driveways leading to residences are also public places for a DWI arrest.

That question is indeed a close one, the outcome of which may depend on whether the private landowner permits the public to enter the driveway. Usage patterns, signs, gates, and fences could all make a difference. If delivery vehicles, neighbors, tourists, lost drivers, and the curious all drive on the private residential road or driveway, then it is much more likely to be a public place. What's a driver to do without a law degree to analyze and interpret Texas case law? Don't get behind the wheel intoxicated, no matter your location.

How DWI Arrests on Private Land Happen

You may wonder why police would be on private land looking to make a DWI arrest in the first place. Police on patrol would indeed ordinarily keep to public highways, making a DWI arrest on private land less likely. But that's not always the case. You've seen the hidden squad cars before: police with some regularity use private lands from which to observe drivers on public highways. When surveilling public-highway driving from a private drive or lot, police also watch the private drives for signs of intoxicated drivers.

Police also follow motor vehicles from the public highways onto private lands. In those cases, the police observations of driving on public highways would be enough to prove vehicle operation in a public place, but police may also use the observations of driving on private lands.

Complainants also call the police to private lands for various reasons, when police may observe intoxicated driving. Those reasons may include domestic disputes or other violence, trespassing, neighbor disputes, injuries, and other emergencies. When police lawfully enter private land in response to an emergency call, they may use their observations as evidence to support a DWI charge, if the vehicle's operation was in what qualifies as a "public place."

But police also surveil certain private lands specifically for DWI violations. Read about where and why in the next section.

Common Private-Land DWI-Arrest Locations

Some would assume that most DWI arrests occur on the highways when officers notice erratic driving or moving violations constituting reasonable suspicion for a traffic stop. It's only surprising until you think about it, but in fact, the common locations for DWI arrests are around the drinking hotspots. And those locations are often on or near private parking lots, drives, and garages and other private lands.

In Houston, the two most common locations for DWI arrests, tracked by zip codes, are downtown and along the Washington Avenue corridor, each crowded with bars and nightclubs. Other Houston DWI hotspots include Midtown's nightlife nexus, Montrose's musical paradise, and the larger event places, all where partiers and participants freely imbibe alcohol. Leaving a club intoxicated to retrieve one's vehicle from a private parking garage or lot exposes one to a DWI arrest.

Sporting events also attract and excite crowds, loosening the atmosphere for celebratory over-imbibing. Houston police make frequent DWI arrests at and around professional and college sporting venues, including NRG Stadium, Minute Maid Park, the Toyota Center, TEDCU Stadium, Rice Stadium, and the Fertitta Center, including on private lands serving as tailgating and parking lots. Police congregate on high alert for DWI arrests at and around the big sporting events, where even the participating athletes may face DWI arrests.

Public and private colleges and universities are another hotspot for DWI arrests, many of which occur on private lands around restaurants, bars, retail outlets, apartments, fraternities, and sororities. Weekends and evenings put campus police on high alert for DWI indicators around Rice University, the University of Houston, and other schools where young drinkers may be irresponsibly spreading their wings.

The Driving Location Can Still Matter

The public-place location of a DWI arrest can still matter significantly to the charges that may follow. For example, federal DUI laws apply when drivers operate vehicles on federal lands. Federal lands include such places as national parks, forests, monuments and historic grounds, and parking lots and garages for federal buildings, post offices, and military bases. Federal DUI laws differ in important respects from Texas DWI laws—for instance, in implying consent to chemical testing and refusing the defendant a jury.

Lawyers think of this question over whether state law or federal law applies as a question of jurisdiction, meaning who has the power to apply the law. The federal government, the laws of which the Constitution makes supreme over state law, controls federal lands. Federal DUI laws thus govern intoxicated driving on federal lands. The location of the driving and arrest can still matter.

State laws and the state officials who enforce them, though, generally have jurisdiction over private lands within the state. States certainly have the authority to regulate the uses of private lands. They do so all the time with zoning, building, and other land-use laws, and with criminal laws, laws for civil liability, and administrative regulations over utilities and the environment. Likewise, states may certainly prohibit drunk driving on publicly accessible private lands.

Do I Have Privacy Rights Against a DWI Arrest on Private Lands?

The Constitution's Fourth Amendment, extending to Texas state officials under the Fourteenth Amendment, prohibits officers from unreasonable searches and seizures. That right would ordinarily prohibit an officer from entering private lands to observe intoxicated driving and make a DWI arrest. So, yes, you might expect to be able to drink and drive around your ranch's back forty, not that anyone would necessarily recommend it.

The scope of the Fourth and Fourteenth Amendment right, though, is only as to places where one has a reasonable expectation of privacy. Your ranch's back forty might be the best example. If no one other than you and the individuals whom you authorize has permission to your back forty, then you probably have the protective privacy right. Police shouldn't crash your lands just to observe and arrest you for drunk driving.

But remember the above "public place" discussion. Your private land on which you may hope to drink and drive with impunity (again, not that doing so is ever a good idea) must be truly private. If, instead, the public has access to your private lands, then in general, so too would the police have access to observe and arrest for a DWI on those lands.

Here's another illustration. Private lands like old mined-out gravel pits and pumped-out oil fields may make great places for vehicle recreation. Off-road enthusiasts can have all kinds of fun in those places and in places that private landowners devote to publicly accessible off-road-vehicle use. But those places, depending on their peculiar use, nature, and history, are very probably not private. They are instead more likely "public places" under Texas's DWI statute. Again depending on the circumstances, you likely wouldn't have privacy rights there.

All-Terrain and Off-Road Vehicles

One other question may arise as to operating an all-terrain or other off-road vehicle on private land. If that operator is intoxicated and the public has access to the private lands, could Texas police arrest them for a DWI?

Recall that Texas's DWI statute prohibits the intoxicated operation of a "motor vehicle" in a public place. That phrase "motor vehicle" might sound to some as if it means a street-legal vehicle, one whose owner operates it primarily on the public highways, and thus not an off-road vehicle.

However, Texas Penal Code Section 32.34 defines a motor vehicle as "a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks." This definition is clearly broad enough to encompass not only sedans, SUVs, trucks, buses, and similar vehicles one sees on the public highways, but also off-road vehicles. One could even argue that the definition would include farm vehicles, go-karts, and even riding lawnmowers. Creative police and prosecutors have even argued the definition's application to bicycle DWI, although that argument should fail.

The point is that it's not the form of the vehicle that counts. What counts is its operation in a public place—operating an off-road or all-terrain vehicle in a public place on private lands while intoxicated could justify a DWI arrest.

Avoiding DWI Violations

An intoxicated driver who simply pulls over to park on the side of the road may be trying earnestly to avoid an accident but becomes a beacon for a DWI arrest. Officers take notice of parked or abandoned vehicles that present hazards along the highways. The intoxicated driver sitting in a vehicle alongside the road is not only creating a driving hazard but is also a sitting duck for a DWI arrest.

To avoid a DWI violation, park only in a designated parking spot on public or private land, where the vehicle does not present a hazard to other motorists. Ensure that your vehicle is lawfully on public or private property rather than a trespass on land. Turn off the vehicle, and exit the vehicle. Then find a safe place to pass the time, even if it means calling a family member or friend.

If you are on private property and intoxicated, your vehicle may look like a good place to sleep it off. But don't put yourself in the position of appearing to operate the vehicle, or you may suffer a DWI arrest. Texas DWI law does not require your intent to drive somewhere. Instead, you need only "exert personal effort" to control the vehicle for a DWI arrest. Personal effort to control can look like different things to different arresting officers, so avoid any of these actions:

• Don't sit behind the wheel.
• Don't put a key in the vehicle's ignition.
• Don't start the vehicle from any position.
• Don't put your seatbelt on.
• Don't turn on headlights or windshield wipers.
• Don't turn on heat or air conditioning.

Don't Evade Arrest onto Private Land

Avoiding a DWI violation, though, doesn't mean "evading arrest." Don't evade arrest by trying to flee onto private land. Don't flee from police who have signaled to stop. Don't ignore a police vehicle's flashing lights and siren, hoping that they will let you get away. Evading arrest is a Texas misdemeanor until one pairs it with a DWI charge, when the two charges together can turn evading arrest into a felony with severe penalties. Texas Penal Code Section 38.034(a) defines the crime of evading arrest as when one “intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

The temptation, especially on or around private lots, drives, and lands, may be to see the private land as a potential sanctuary from arrest, to which to flee. "If I can just get to that private lot or my friend's house" may be the excited thought. Don't take that approach. Instead, think clearly. Private land is no sanctuary from DWI arrest. Police may enter private lands to pursue a fleeing suspect. And a motorist entering certain private lands for certain purposes may be committing another crime of trespass, not to mention the crime of evading arrest.

Significantly, the method of one's flight has a lot to do with the seriousness of an evading-arrest charge. Texas Penal Code Section 38.034 defines flight on foot as a misdemeanor punishable by up to a year in jail and $4,000. Flight in a vehicle, though, turns that misdemeanor into a third-degree felony punishable by two-to-twenty years in jail and $10,000. Flight causing injury also enhances the charge and penalties. Read more here about evading arrest.

Drivers trying to avoid a DWI arrest should also not resist arrest, another Texas crime. Texas Penal Code Section 38.03 defines resisting arrest as when one "intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another." In simplest terms, "evading arrest" involves flight, while "resisting arrest" involves force.

If your DWI matter includes charges or evidence of evading or resisting arrest, then you especially need the representation of DWI attorney Doug Murphy. Evading or resisting arrest makes defending, diverting, or defeating a DWI charge significantly more difficult and complex. The intoxication itself is no defense, but you may have other defenses. For instance, to support a charge of evading arrest, the detention itself must be lawful, an element that skilled counsel may challenge on the right facts.

Contact Our Harris County DWI on Private Property Attorney

If you face a DWI charge arising out of your arrest on private land, then you need experienced legal counsel to defend the charge. Houston DWI Lawyer of the Year Doug Murphy helps clients successfully defend DWI charges, even those that arise from arrest on private lands. Know your DWI rights and the rights you have to minimize the negative impact of a DWI arrest. Retain DWI defense attorney Doug Murphy to preserve and enforce your rights.

As a Board Certified DWI attorney and one of only two Texas lawyers holding both DWI Board Certification and Criminal Law Certification, Doug Murphy has the experience to aggressively defend DWI charges arising from arrests on private land. Doug Murphy can also help you defend related charges like trespassing or disorderly conduct while managing the collateral consequences of a DWI arrest. Contact Murphy & McKinney Law Firm, P.C. online or at 713-229-8333 to discuss your case today. Trust Texas DWI attorney Doug Murphy with your DWI defense.