DUI Appeal - Passenger Busted for Public Intoxication When Car Stops

Posted by Bruce Carton on June 29, 2011 at 04:30 PM from LegalBlogWatch
Responsible Motorist Declines to Drive Drunk, Gets Charged With a Crime Anyway
Stop me when you think you've identified the crime committed by the woman in the facts below:
1. Woman drives to her sister's house.
2. Woman consumes two "tall" beers.
3. Woman's sober friend asks woman to drive him to another person's house.
4. Woman says she is too drunk to drive, but sober friend can drive them both there.
5. Woman and sober friend get in car and head off to other person's house, with woman in passenger seat.
Anybody yell out "Stop" yet? No, not yet? OK, let's add:
6. Police pull over the car driven by sober friend because the license plate light is not working, and see that the woman (who is in the passenger seat) is intoxicated.
How about now? Anyone yelling out "Stop?" Because it is at this point that the Indiana police claim that the woman, Brenda Moore, committed the crime of "public intoxication." Indiana code provides that
It is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance.
The trial court and, as of Tuesday the Indiana Supreme Court, held that under Indiana law, "a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute." Thus, when the police stopped the car in which Moore was a passenger, she became in violation of the statute.
Moore argued that her conviction violated the spirit of the public intoxication statute, and the policy behind it, because she caused no harm or annoyance and "adhered to the popular public service motto 'Don't drink and drive.'" She argued that public policy should "encourage persons who find themselves intoxicated to ride in a vehicle to a private place without fear of being prosecuted for a crime." She further argued that she was essentially being convicted for exercising her freedom to consume alcohol.
But the Indiana Supreme Court rejected these arguments, stating that it was up to the Legislature to determine public policy and that she was convicted not for consuming alcohol but for her "conduct after consumption" (riding as a passenger in a car stopped for a license plate infraction??)
Justice Robert Rucker, my new favorite member of the Indiana Supreme Court, dissented. Rucker wrote that as the purpose of the public intoxication statute is to protect the public from the annoyance caused by intoxicated people, "it is difficult to perceive how this purpose is advanced by declaring that the inside of a closed vehicle traveling along a highway is a public place." He added that "Moore should not suffer a criminal penalty for taking the responsible action of allowing a sober friend to drive her car while she was too intoxicated to do so. I would reverse Moore’s conviction."
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OUI Appeal - Driveway Not Public Way Says Mass Court

Some states only apply drunken driving laws to 'public ways' or 'highways' or 'public places'. Massachusetts restricts their law to a way to which members of public have access as invitees or licensees. In Commonwealth v. Virgilio, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 1988395 (Mass.App.Ct.) the defendants vehicle was located on the driveway that is used by only two houses to reach their respective parking places. The court found that such a driveway was not a 'public way' within the meaning of the statute, and reversed the conviction:

"In no case brought to our attention has mere physical accessibility by one operating a motor vehicle and who is not a trespasser been deemed minimally sufficient, as matter of law, to qualify as a “way or place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1). See Smithson, supra (where the court found that the characteristics of the road on a holiday weekend were not such that members of the public could reasonably infer they had an invitation to travel despite the fact the public had physical access to the road). Here, in our view, the facts beyond its physical accessibility by nontrespassers, namely, that the driveway and parking area were shared by and accessible to the occupants and guests of two residential buildings, are not sufficient to bring these places under the statute's reach. To decide otherwise would be to essentially overrule the requirement that, in cases such as this, members of the public must be able to reasonably conclude, from the physical circumstances of the way, that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature, or add words to a statute beyond those the Legislature has chosen to include."

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