Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

But what if the driver was observed driving only in a private space and the police initiated the vehicle stop and arrest all within the confines of private property. In the early 1990’s a driver who was stopped and arrested for driving under the influence after the police observed him driving in a private locked storage facility parking lot challenged his arrest on the basis that the DUI laws did not specifically make it unlawful to drive under the influence on non-public roadways. The appellate court disagreed and held that that driving under the influence is unlawful anywhere a vehicle can be driven in the State of California. (People v. Malvitz (1992) 11 Cal.App.4th Supp. 9,) And that remains the law today. There may be a potential defense to a DUI on a private road in rare circumstances. For example, if someone was driving under the influence on a private road far from public access and public view—say on a country road contained within a large parcel of private property—and that driver was cited for DUI, he or she could argue, perhaps successfully, that the officer did not have reasonable suspicion to justify entering the private property and/or that because the driver presented no threat to public safety, there was no violation of the law. The scenario is rather obscure but serves to illustrate the long arm of the DUI statutes; it is only in a nearly impossible hypothetical that a DUI arrest on private property might be challenged. If you would like to know more about the laws regarding driving under the influence of alcohol or other drugs in California, contact Orange County Criminal Defense Attorney William M. Weinberg at his Irvine, California office at 949-474-8008.

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