Is It Possible to Get a DUI on Private Property?

Driving on highways and other public property while intoxicated is illegal in every state. But is it possible to get a DUI if you're driving only on private property?

This article explains how state DUI laws address private property and how state laws differ on this factor.

Can You Get a DUI on Private Property?

Generally, you can get a DUI on at least some private property. However, in terms of private property, some state DUI laws are more inclusive than others.

DUI Statutes That Apply to All Private and Public Property in the State

Some state DUI statutes apply to private property by prohibiting driving a vehicle while intoxicated everywhere within the state. In these states, the law might say it's illegal to operate a vehicle while under the influence:

• "within this state"
• "anywhere in this state," or
• "on highways and elsewhere throughout the state."

Courts have interpreted this type of language to encompass all areas of the state where a vehicle can be driven. So, in states with these broad DUI statutes, it's illegal to drive a vehicle while under the influence of alcohol or drugs anywhere within the boundaries of the state, regardless of whether the property is public, private, or open to the public.

DUI Laws That Include Only Some Private Properties—Properties "Open to the Public"

All DUI laws apply to public property, which typically includes highways, roads, streets, thoroughfares, bridges, and the berm or shoulder of all roadways. However, in some states, certain private property is included in the definition of public areas.

In these jurisdictions, DUI laws generally apply to specific types of private property by making it unlawful for an intoxicated person to drive a vehicle:

• "upon any premises open to the public"
• "on premises to which the public has access"
• "on private property open to the public," or
• "upon private areas to which the public has a right of access for vehicular use."

Some private properties—like shopping center parking lots—inarguably fall within these definitions. But, with some other private properties, the issue is debatable.

DUI Defenses Based on an Arrest on Private Property

Where a DUI arrest occurs on private property, the driver might have a viable defense if it's at least arguably that the property is not open to the public. To determine whether private property is open to the public, factors that courts typically consider are whether:

• the property is available to the general public for the use of vehicular travel or parking
• an indefinite and undefined group of the public have access to the property (as opposed to use by a few privileged members of the public)
• business is conducted on the premises or the property is residential
• the property is immediately accessible from a public sidewalk or street, and
• there's an intent to keep the public out, shown by limitations to accessing the property, such as physical barriers, posted signs restricting access, or consequences for entry by unauthorized individuals.

Each situation is unique. But these factors are a good starting point for assessing whether you might have a private property defense. Talk to a local DUI attorney to get a better idea of available options.

Private Property Where You Probably Won't Have a Good DUI Defense

DUI laws that apply to private property open to the public are usually broad enough to cover parking lots where the public is invited for business or entertainment purposes. As a result, in most jurisdictions, the parking lots of restaurants, shopping malls, schools, office buildings, hospitals, and parks are open to the public for DUI purposes. Additionally, DUI laws usually apply to the parking lots and common areas of multi-family residential dwellings such as trailer parks, apartment complexes, and condominiums.

Private Property Where You Might Have a Good Defense to DUI Charges

The statutory language of "open to the public" doesn't typically cover the driveways of private residences. Even though social and business guests are allowed to use private driveways, the use is generally limited to a few privileged individuals.

A gated community is another place that might not come under the definition of open to the public. Where residents need a code or clearance from a guard to enter a property, it would seem, by definition, that the property isn't open to the general public.