DUI on Private Property
When no crash occurs, the arresting officer is typically not allowed to make a warrantless arrest for DUI unless each element of the DUI occurs in the officer’s presence. Otherwise, a motion to suppress can be filled to exclude any evidence gathered illegally.
Can a person be arrested for DUI if the person drove (or was in actual physical control) while on private property only?
As a related question, can the DHSMV administratively suspend a driver’s license after a DUI arrest when the driver was observed driving for being in actual physical control of a vehicle while only on private property?
Florida’s DUI statute, Section 316.193, criminalized driving or being in actual physical control of a vehicle “within this state” while under the influence of alcohol or chemical or controlled substances or having a BAC of .08 or above.
Section 316.193 itself does not contain any language making a distinction between public roadways and private property including a private driveway. So when the statute says “within this state” does it apply to anywhere within the physical boundaries of the State of Florida, or does it apply only to the public streets, public highways, and those private thoroughfares open to public use?.
To focus exclusively on the phrase “in this state,” ignores the language of section 316.640, Florida Statutes, which provides, in part, that counties and municipalities shall enforce state traffic laws on:
“all the streets and highways thereof and elsewhere throughout the county wherever the public has the right to travel by motor vehicle. In addition, the sheriff’s office may be required by the county to enforce the traffic laws of this state on any private or limited access road or roads over which the county has jurisdiction pursuant to a written agreement entered into under s. 316.006(3)(b).”
See Section 316.640(2)(a), F.S. See also Section 316.640(3)(a), F.S.
For this reason, the state traffic laws draw a distinction between driving on public roads versus private thoroughfares, including a private lot or driveway within a gated subdivision.
In Zink v. State, 448 So. 2d 1196 (Fla. 1st DCA 1984), however, the court found no issues with a DUI arrest that occurred while a person was trespassing by “‘spinning donuts’ in the dirt of a construction site on private property owned by Alton Box Company. He had no possessory or proprietary interest in the property.”
The Zink Court declined to adopt any interpretation of the clear terminology of section 316.193(1)(a) since the phrase “within this state” is not ambiguous and indicated the legislature’s intent to encompass all lands in the state.
On the other hand, State v. Day, 96 Wn.2d 646, 638 P.2d 546, 548 (1981), a case from the State of Washington with DUI laws similar to Florida’s DUI laws, the court concluded that it was an unreasonable extension of the legislature’s police power to prohibit intoxicated persons from driving on private land.
Many believe the courts in Florida should read the statute to say that a driver on private land, who poses no danger to the general public, is exempt from regulation under Florida’s DUI statute.
Florida DUI on Private Property – Visit the website of the Florida Attorney General, Ashley Moody, to learn more about Advisory Legal Opinion AGO 2004-29 dated June 18, 2004. The opinion concerns how DUI prohibition applies to all roads in the state.
This article was last updated on Wednesday, February 2, 2022.