What is a DWI on Private Property?

One of the requirements of a Texas DWI is that it be committed on public property. Texas Penal Code 49.04 defines Driving While Intoxicated as “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” So how does the law define public place? Texas Penal Code 1.07 (40) defines public place as “Any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” Although this language is straightforward, there are appellate courts in Texas who have found that “public place” for purposes of a DWI conviction is not what the law defines above.

For example, in Woodruff v. State, 899 S.W. 2d 443 (Tex. App. Austin 1995), the appellate court found that a locked down military Air Force base with around the clock, armed guards posted at all entrances, was still a “public place” air force basefor purposes of a DWI conviction. To be specific, this clearly violates the law as “a substantial group of the public” does not have access to a military base. The law envisioned access as what the definition implies, a member of the public drives in and out of a public location without encumbrance. Unfortunately, the lack of rationale as employed in the Woodruff case is not limited.

In State v. Gerstonkorn, 239 S.W. 3d 357 (Tex. App.- San Antonio 2007), the appellate court found that a gated community with a security guard on duty at the entrance was a “public place.” What it boils down to is this courts interpreting hypothetical actions as fact, contrary to the black letter of the law which defines the parameters. What if someone in the gated community invites a member of the public to their property? To do so, the invitee would have to be given the code (not accessible by the “substantial group of the public”). This is flawed logic because turned on its head, it equates to the following scenario.

What if a private homeowner opens their garage door and someone enters it and parks? This would naturally be considered trespass, as the understanding of private versus public property, as defined by the law, is most obvious. Most officers called out garage-doorto this particular scene would view this as an uninvited entry of which “a substantial group of the public” should not feel entitled to. It is not just, right, or equitable under the law to define a “public place” differently for one purpose when it suits a DWI conviction, versus another when it involves a criminal trespass situation. The hypocrisy in law when it comes to DWI, as evidenced by both the black letter of the law versus appellate cases which interpret otherwise, prove that there is much left to be done by professionals of the field in order for justice to prevail.

Just because a police officer has determined that being asleep in your own driveway or property constitutes a DWI, does not mean that it is in fact so.

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