The Capitol Building of Columbus (Ohio), 1861,...There exists a persistent belief amongst the public that there is a defense to a driving under the influence charge if operation of the vehicle takes place on “private” (as opposed to public) property.    This is not true.  R.C. 4511.19 applies to operation anywhere “within the state.”

The public/private distinction does matter in the context of Ohio’s implied consent law…sorta.  Ohio law assumes that if you operate a vehicle on public highways, then you consent to a search of your blood breath or urine if a police officer has probable cause to believe that you are under the influence of drugs or alcohol. If you refuse to consent to this “reasonable” search, or if you consent to the search and test over the .08 BAC limit, Ohio will administratively take your license.  This process is referred to as the ALS (automatic license suspension).  Until a 1989 amendment to the law the ALS applied only to persons operating on public highways.

R.C. 4511.191 enlarged the scope of the law to encompass public and private property used by the public for purposes of vehicular travel and parking.  In State v. Richardson, 1984 WL 3378 (Ohio Ct. App. 12th Dist. Preble County 1984). the court expanded the definition of public to include a roadway located in a private subdivision that was “an area open to the public” even though the entrance was guarded and the visitors were restricted to invitees of the property owners.  In State v. Gottfried, 86 Ohio App.3d 106, 619 N.E.2d 1185 (6th Dist. Ottawa County 1993), the defendant was driving on the berm of a railroad track at the entrance to a private R.V. park.  The court still held that this was “open to the public” and upheld the conviction.

What we can deduce from the following is that courts will liberally interpret what is “open to the public” for purposes of the Automatic License Suspension determination.  If you arrest occurs on purely private property you may be able to escape provisions of the ALS, but you will not be able to use “private property” as a defense to the OVI (operating a vehicle while intoxicated) charge.

This area of the DUI/OVI law raises questions about what would happen if a person is found on private property following a one-car automobile accident.  If the “totality of the circumstances” do not support a conclusion that the defendant was driving on a public highway, then the public/private case law may still be relevant.  If you have questions as the result of an arrest for DUI in Ohio, contact attorney Charles M. Rowland II at 937-318-1DUI, 1-888-ROWLAND (888-769-5263), or text DaytonDUI (one word) to 50500.

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