By on October 18, 2011

Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to music in an undriven car parked on his father’s driveway while drunk. The Nebraska Supreme Court on Friday used the case to clarify that the charge of driving under the influence of alcohol (DUI) does not apply in a personal driveway.

When McCave did not listen to his father, John McCave, who told him to go away, the police were called. Officers arriving at the scene noticed McCave was drunk in a car and asked him to take a breath test. McCave refused, saying he had not driven anything. Officers proceeded to pile on charges.

“I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle,” Officer Benjamin Faz testified.

McCave was hit with DUI, refusing a breath test, possessing an open container of alcohol in a vehicle, trespassing and resisting arrest. The officers did not bother asking Susan McCave whether she had been the one to invite her stepson to the house that night.

Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave. They also insisted McCave’s car was on public property because it partially overhung a sidewalk. The high court explained that DUI statues do not apply to a person on private property not open to public access. Past precedent in the state held that an apartment complex parking lot qualified as being open to public access, but the case at hand was different.

“As a matter of law, we conclude that a residential driveway is not private property that is open to public access,” Justice William Connolly wrote for the court. “Members of the general public have no right or implied permission to use a private residential driveway. Nor do they have the ‘ability to enter’ the driveway in the same sense that a member of the public might drive through or use a private parking lot by custom.”

The court blasted the prosecutor’s argument that McCave’s car was subject to the DUI statute because it was parked at least in part on public property.

“Nor do we think that the driveway’s characterization as private property without public access changed just because McCave’s vehicle overhung the sidewalk,” Connolly wrote. “We do not believe the legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk.”

The court also discarded the prosecution’s insistence that McCave was guilty of DUI simply because the police officer claimed the man had stated he was “leaving.”

“Obviously, if McCave had committed an offense in front of the officers, they would have had grounds for an arrest,” Connolly wrote. “But his statement that he was leaving, even if his hand was on the key in the ignition, showed only that he had considered driving but changed his mind.”

The high court went on to blast the sloppy police work that led to McCave’s conviction.

“No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness,” Connolly wrote. “Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct. As previously discussed, it is not unlawful for a person to be intoxicated in a vehicle on private property not open to public access.”

The court reversed all of McCave’s convictions, although it did allow retrial on the trespass charge. A copy of the ruling is available in a 650k PDF file at the source link below.

Source: PDF File Nebraska v. McCave (Nebraska Supreme Court, 10/14/2011)


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32 Comments on “Nebraska Supreme Court: No DUI in a Private Driveway...”

  • avatar

    A bit scary that it took the state Supreme Court to point out the failed logic in that arrest. But at least someone did….

  • avatar

    “Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave.”

    So we should arrest all those TV chefs for murder because they had control fo the knife and might be about to commit murder?

  • avatar

    Hrm, I guess I better remember to bring everything inside from the car before having a drink. I’d hate to be fishing through the glovebox for something and get arrested for DUI…

  • avatar

    For as much lawyer-bashing that goes on in this forum, it’s worth noting that it took a lawyer to defend this guy, and it took lawyers on the state supreme court to call out the cops as overstepping their boundaries. Granted, there was a prosecuting attorney on the other side.

    This is an example of how defense lawyers don’t just “defend criminals”. They protect the rights of the innocent.

    • 0 avatar

      Defense lawyers are good on a case by case basis, but as a pressure group, it is certainly in their interest to see as many people as possible forced to use their services. That’s not so good.

      Regardless, by far the biggest problem is with the other side. They are, after all, the ones dragging people off the street and into courtrooms for props in their silly, but personally profitable, ritual to begin with.

  • avatar

    I know it’s really about MADD and public safety, not the luscious fees and fines fattening up the coffers which justifies DUI under the most extreme circumstances, but DUI requires the Driving component at a minimum.

    Man leaves a bar and goes to sleep in the back seat of his car, keys in his pocket. DUI in most states. Welcome to overzealous policing.

    • 0 avatar

      I am not a great fan of modern policing but to call this “overzealous” is, I suspect, somewhat inaccurate.

      My reading of this case is that the kid was almost certainly a risk to be a DUI and the cops thought they were doing the right thing by preventing him driving.

      Clearly from a legal and technical standpoint they got it all wrong but I think their motives were good in this case.

      How the “system” allowed the prosecution to proceed and succeed is a whole other can of worms.

      • 0 avatar

        The judge disagreed with the arrest and while overzealous policing may or may not apply (we were not there and are not privy to all the information) it’s clear that DUIs are a high financial priority and there seems to be no limit to filing charges. What other arrest brings a bounty of cash like DUI? Robbery and assault rarely have thousands of fines and provide employment for traffic school and counseling. Insurance companies don’t get behind efforts to prevent other crimes, but DUI rings the cash register for them every time.

        Motives and intent are a poor substitute for rules and law. The road to hell is paved with them. They could have helped the young man back in the house with the best of intentions, but that would not be a score.

      • 0 avatar

        +1 GS650.

        Buddy of mine got a DUI about 7 years ago. Not a rolling stop DUI. A genuinely wasted, 70 in a 40, actually earned it DUI.

        Paid a lawyer. Paid his insurance company. Paid an alcohol abuse counselor. Paid the county court. Probably 5 or 6 grand all told. Ringing cash registers all around.

        Actually protecting the public and taking drunks off the road? They took his driver’s license. Forbidden to drive! That lasted all of 3 hours. Gave him a temporary license leaving the police station that night. Gave him back his real license the next week. With restrictions that amounted to no drinking and driving, or we’ll actually punish you next time.

        Just another money grab under the guise of safety. Like photo enforcement, that guise is getting awfully thin.

      • 0 avatar
        George B

        Thought experiment. If the fines for DUI were not so high, would the defendant ever have been charged with that crime? The police could have hauled the defendant off to jail on some other crime like possibly Public Intoxication or simply demanded that he get a ride home to avoid arrest.

      • 0 avatar

        Anyone with a bottle in the kitchen cupboard and a car in the garage is also a “risk of a DUI”, in that case. Don’t know about in Alberta, but in the USA you get arrested for actually comitting crimes, Not “having the potential” to commit them.

    • 0 avatar

      I was on a jury in CA that acquitted a man who was sleeping it off in the back seat, parked on a public street. Empty bottle of Wild Turkey was found nearby and presented into evidence at the trial. The engine was cold and the deputy did not see him driving, but a phoned-in tip said he was. The tipster seemed to be high on something when on the witness stand.

      • 0 avatar

        pay attention, folks — in the back seat. There are many, many cases of DUI convictions based on finding someone sleeping off a drunk in the driver’s seat. I’ve always thought that’s a bad policy, because it discourages people from pulling over if they get in a car and realize they are too looped to keep driving.

  • avatar

    DUIs are the scarlet letter of the modern world.

  • avatar

    I know quite a few police officers in my area and exactly none of them has a law degree.

    How are police officers expected to enforce complex law without the benefit of the same education expected by others in the legal profession (Judges, Lawyers..etc)?

    It seems that as more complex laws end up on the books, law enforcement will be even less qualified to enforce those laws.


    • 0 avatar

      It doesn’t take a rocket scientist to know that a guy chilling in the driveway isn’t committing a DUI.

      • 0 avatar

        Depends- is the guy chilling a 29 year old douche bag with an attitude sitting wasted with a quart of beer in a ratty nine year old Sentra or a 57 year old upstanding member of society, friends with local politicians, reposing with a glass of wine in his brand new Audi?

        That, my automo-philic friends, is the real distinction…

      • 0 avatar

        I don’t see a distinction at all. The drunk you describe may be a loser but that does not change the dynamics of the situation. The only douche bag here is the cop…

    • 0 avatar

      It doesn’t take a law degree to make good decisions. If we excuse LEO mistakes on that basis then even more transgressions are allowed.

    • 0 avatar
      John Horner

      This is not a complicated situation which requires a law degree. Common sense tells you that driving under the influence requires … driving! Sitting in a parked car in a residential driveway isn’t driving.

      I wonder if the cops had some personal relationship with the angry dad in this situation. “Ha, I’ll show that kid. I’m going to call Sargeant OldBuddyOfMine on the police force and have him arrested.”

      • 0 avatar

        Actually, it doesn’t require the driver to be driving. If you are drunk and pull over on a public road to sleep, you can still get arrested for DUI, even if the officer doesn’t see you driving.

        Being in a public driveway does make it a bit different. One could be drunk and go sit in a car. But, I could see why the officer might have been confused given the above example.

    • 0 avatar

      It seems that as more complex laws end up on the books, law enforcement will be even less qualified to enforce those laws.

      It’s not complicated. The cops have no more business arresting a guy for DUI on private property than they would handing out speeding tickets at a race track. Driving laws don’t apply to private property.

      The issue here isn’t with complexity, but with law enforcement overstepping their bounds. This sounds like another example of the cops fishing for an excuse to arrest someone. Since their grounds for justifying the arrest were limited, they threw the kitchen sink at him in order to make something — anything — stick.

    • 0 avatar

      The same way voters are supposed to vote for those same laws that they don’t understand: By rolling over and submitting unconditionally to the (self)anointed expert classes who claim to understand them. Never mind their understanding staring and stopping with the extent to which they personally stand to gain from the laws.

  • avatar

    If you are a police officer and there is a drunk guy in a car but is not driving. You tell him that he better not drive or he’ll be picked up. If possible, you keep an eye on him if you suspect that he’s going to drive anyway.

  • avatar

    I, for one, am amazed at the court’s ruling. The nebraska supreme court finally got one RIGHT ! The first right one (IMHO) that I can recall. Way to go, team !
    (scarey is a lifelong resident of the children of the corn state)
    …BTW, this is not being widely reported in the local press. This is the first I have heard of it.

  • avatar

    Yeah, what would the producers of Highway Patrol have done? “Broderick Crawford had his Driver’s License suspended for DUI, so they couldn’t film his Highway Patrol TV Show on public roads. Instead, they had to use private roads for the driving scenes.”

  • avatar

    I guess that Everybody Loves Raymond episode where Debra got a DUI for napping with the engine off was reality! I wouldn’t have believed it.


  • avatar

    The cops should have waited for him to leave the driveway!

  • avatar

    Sometimes I feel like my belief in our legal system is restored but I know reality is around the next corner.

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