DUI Law - Nebraska Says Driveway Arrest and Refusal Illegal

This case has plenty of great statements of law. In State of Nebraska v. McCave, --- N.W.2d ----, 282 Neb. 500, 2011 WL 4861872 (Neb.) the defendant is found inside his car allegedly intoxicated. The car is parked in the private driveway of his father's house with the vehicle not running. While he was listening to music on the car radio, his father told him to turn the volume down and leave. After he refused, his father called the police. The police, after a confrontation, arrested McCave for trespass and driving under the influence of alcohol (DUI). Later, the State additionally charged him with resisting arrest, refusing to submit to a chemical breath test, and possessing an open container of alcohol in a vehicle.







As per the opinion, this appeal presents several interrelated issues:







1. Did the evidence show that McCave had operated or was in actual physical control of his vehicle on a public highway or on private property that is open to public access?







2. Did the evidence show that McCave possessed an open container of alcohol on a public highway or in a public parking area?







3. Does an officer's lack of probable cause for a DUI arrest bar a prosecution for refusing to submit to a chemical test?







4. In the criminal trespass prosecution, was evidence showing that McCave's stepmother had consented to McCave's presence at her house admissible?









In Nebraska, a DUI must occur on public property, or on private property that is open to the public access. Nebraska had found that an appartment parking lot was open to access. here, the Supreme Court found as a matter of law that a private residential driveway does not constitute a place where DUI can occur, as it is not "open to public access."



Further, the high court found that the cops did not have probable cause to arrest for DUI, so the defendant's refusal should have been suppressed. Additionally, the Supreme Court found that retrial was not warranted becuase as a matter of law the evidence was insufficient to convict.



Lastly, the court found that the statement of the sister of defendant, i.e. that the defendant had permission to be on the property, was not 'hearsay" becuase it constituted a "verbal act" and as such should have been admitted in regards to the trespass count. . "A verbal act is a statement that has legal significance, i.e., it brings about a legal consequence simply because it was spoken." "A statement offered to prove its impact on the listener, instead of its truth, is offered for a valid nonhearsay purpose if the listener's knowledge, belief, response, or state of mind after hearing the statement is relevant to an issue in the case."

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