By on October 15, 2013


Here’s something to consider: if you are operating a motor vehicle on private property, and you’ve been drinking, should that be considered DUI? What if you’re on a racetrack that is closed to the general public?

Armchair attorneys across the country are currently discussing the above question after the report that a circle-track racer was arrested for DUI during a race.

According to Anderson Police Department public information officer, Joel Sandefur, [the driver] was black-flagged and forced out of a race Saturday night but re-entered the race where he intentionally crashed into another driver. No injuries were reported.

Sandefur said officers smelled alcohol on Lathan’s breath after the race and several witnesses reportedly saw him drinking between races.

Let me make one thing, as they say, perfectly clear: as a racer with some circle-track experience, I find the idea of racing an automobile impaired by any substance to be completely beneath contempt. I won’t line up on the grid next to someone who is obviously drunk and nor should anyone else. This moron should be suspended for a year or longer from every sanction in the country.

With that said: when you lose your temper and run into someone during a race you aren’t charged with assault. When you crash your race car you aren’t charged with failure to control. If you short-brake someone going into the Esses at Mid-Ohio you aren’t charged with six-point reckless op. And, of course, there’s no penalty for speeding on a track. These things are handled within the event, the same way that my son isn’t charged with assault for punching someone in the face during his Tae Kwon Do class. So why is driving drunk around a racetrack subject to official intervention?

The answer apparently depends on the state in which the incident happens. According to Breitbart’s Lawyers Of The Internet, Indiana has no exemption for OMVI on private property. (Our volunteer counsel, Curvy McLegalbriefs, submitted this story for review but offered no opinion on the law in Indiana.) There’s something scary about that. If you want to get drunk and drive a tractor around your back yard, shouldn’t that be legal? These aren’t street-legal cars and this event was closed to the public in the sense that you can’t just show up and drive. Where should the line be drawn?

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53 Comments on “Racing Drunk On Private Property Is DUI In Indiana — Maybe...”

  • avatar

    “According to Breitbart…”
    I hope this doesn’t become a trend.

  • avatar
    Silent Ricochet

    A little ridiculous if you ask me. You’re on private property already operating in dangerous conditions and therefore, alcohol can only exacerbate these conditions. That being said, it’s not on the open road and shouldn’t be interpreted as such by the law. Is it asinine to operate a race car while under the influence? Absolutely. DUI worthy? I don’t think so. Though, I do agree this dude should be suspended or at least slapped with a hefty fine for being an idiot. Save the beers for after the race. But if I wanna pound a few cold ones and ride my ATV around my land, why shouldn’t I be able to? If I get hurt, it’s my fault and mine alone.

  • avatar

    To a certain extent what people do on private property is their business. However, racing while drunk opens up a can of worms. Did other drivers know some are drunk? Was a “drinking while driving” race where all participants were drunk? As soon as a drunk racer injures or kills someone, the law suits will begin.

    If you want to drive your car on your property drunk, I don’t see a problem. If, however, a race is sponsored by a group, then common sense should apply.

    • 0 avatar

      Any organized racing venue will have its own methods of dealing with people who can’t behave themselves. I think it’s pushy for the government to insert itself.

    • 0 avatar

      As a criminal lawyer, I should note that the law in Canada on impaired driving and driving over the legal limit clearly applies to private property. Throw in the racing aspect and theoretically a slew of additional charges could result, particularly criminal negligence, given the significant risk of death or bodily harm. That’s not even to mention the civil liability if an injured party were to sue.

      • 0 avatar
        juicy sushi

        I was just about to post that it would all depend on the wording of the law itself. Also, I wonder if the sanctioning body itself wouldn’t be encouraging the criminal charges, as a sort of nuclear option to intimidate other extremely stupid individual competitors so that the overwhelming majority would be safe to enjoy their sport (rather than face both safety risks and legal roadblocks from cases down the line).

    • 0 avatar

      The way I see it driving drunk at a track amounts to Criminal Endangerment or something like it.

      For sure police should be involved. Why not?

      I don’t see that signing up to race and “accepting the risk” includes facing being killed by a drunk.

  • avatar

    I think it depends on the policy of the business. Criminal law most certainly can be enforced on private property if the owner of the property chooses to do so. You can get a citation for running a stop sign in a parking lot, you can get a ticket issued by the police for parking in a handicap space or fire lane etc.

    If I drive drunk on the road in front of my house, it most certainly is a crime to do so for which I can be arrested, even though the road is technically owned by my subdivision instead of the state. And my subdivision doesn’t need to hire private security to do so; the Sheriff will provide that service as part of county public services.

    If the policy of the race-track is “no drunk driving” then they most certainly should be able to press charges for somebody driving drunk on their racetrack.

  • avatar

    If it didn’t require a state driver’s license to participate I don’t see how there could be a ticketable offense.

    That being said, he should have been ejected from the facility and told if he ever shows his face there again, the police could have him for trespassing.

    • 0 avatar

      I seriously doubt that a license is a prerequisite to being charged with a DUI.

      One might be able to argue that DUI wouldn’t apply to a person driving around a private track by themselves.

      Drivers, spectators, and staff are expected assume some risks due to driving error, but it’s a big step from there to make them assume the risks of impaired driving.

      DUI is one of society’s mechanisms for reducing the frequency of accidents in which the liability far exceeds the guilty party’s ability to pay – leaving the victims, as well as “the rest of us”, with significant costs.

      • 0 avatar

        I think his point is that the general motor vehicle code (e.g. license requirements, speed limits on unmarked roads, lighting requirements) does not apply to the race track. But it looks like the Indiana impairment statute is broader than that.

  • avatar

    I think the key part of the story was that he was “black-flagged and forced out of a race Saturday night but re-entered the race…”. That tells me the police were likely called by the race operators after they were unable to restrain the drunk. In that case, the police CAN arrest a person for drunk driving on private property, against the wishes of the owners/operators. If he’d been black-flagged and stayed out of the race, the penalties alone described by Jack would have been appropriate.

  • avatar

    This is somewhat similar to prosecutions arising out of stick swinging incidents and fights in hockey games.

    As a side question, you can be arrested for operating under the influence in many jurisdictions for having the key in the ignition while you sleep it off in a parked car. I wonder how the proliferation of smart key fobs will be treated. If I’m sleeping in the back seat and have a smart key in my pocket, is it legally equivalent to having a physical key in the ignition?

    • 0 avatar

      In MD all you need is the keys in the car. A friend of mine in the 90’s got a DUI for being passed out in the back seat of the car with the keys in his pocket. This is before remote start. He had gotten in a fight with his GF but was too drunk to drive. Plan was to sleep it off in his car till morning. Neighbor walking his/her dog called police about a suspicious person. Police arrived and arrested him. Told him if it would have only been drunk in public if the keys were left outside the car. In MD you can also get a DUI for being on a bike or even in a wheelchair while drunk.

    • 0 avatar
      Frank Galvin

      I am an attorney. The “sleeping” in the car with key in the ignition example is one of the most common first year law school hypothetical examples. You are spot on about being arrested for OUI/DWI for having key in the ignition. Putting the key into the ignition is enough for “operating.” Many OUI/DWI statutes are crimes of strict liability, subjective intent has no bearing on whether the car was in operation. With a key fob, there is no active operation unless the key is inserted into a receptacle, or a push button is activated. One could easily open the door, collapse into the back seat, pass out without ever having sat in the drivers seat. Defense lawyers will love that.

      • 0 avatar

        >> with a key fob, there is no active operation unless the key is inserted into a receptacle, or a push button is activated.

        The push-button on the dash might be considered the same as twisting the key. A key just inserted into the ignition won’t result in active operation – you have to turn it.

        • 0 avatar

          This kind of stupidity was why back in the day if we were hanging out in my car before going into a bar, I wired the radio to operate with no key, and the trunk release could be made to open the trunk with the knowledge of the two buttons needed to open it. I would put the keys in the trunk. While there is no excuse for driving drunk, the laws should reflect just that, driving. Arresting somebody for sleeping it off in the car is absolute horseshit. If the penalty is the same, there will be those who say F-it, might as well take the chance to drive home.

    • 0 avatar

      I’d say the smart key would be considered a key in the ignition, unless you can deactivate it by pulling the battery. If the car can be started by pushing the button on the dash, then the key is an “ignition position”. Disclaimer – do not construe the preceding as legal advice and you should check with your own attorney.

    • 0 avatar

      In Ohio as well, all you need are the keys to the car. Sleeping in the back with keys in your pocket (even regular old keys) will net you a DUI if they see you.

      • 0 avatar

        In the example I cited above, my friend had the keys in his pocket,not in the ignition. Funny thing is 20 years later when my friends and I go camping (and sleep in our vehicles) we leave our keys outside on the tire.

  • avatar

    The internet seems to be full of people behaving stupidly and government acting with a heavy hand today. If the dude was drunk on the track racing with other vehicles I cannot work up any sympathy. He is probably lucky that the other participants didn’t take the matter in their own hands.

  • avatar

    “According to Breitbart’s Lawyers Of The Internet, Indiana has no exemption for OMVI on private property.”

    According to my friends at Google, there is case law that specifically includes private property in the DUI law. Indiana v. Manuwal:

    I don’t personally agree with that position, but this is a state matter. If the people of Indiana don’t like it, then they’ll have to get their legislators to change the law.

    • 0 avatar

      It looks like the Indiana statute does not specifically limit DUI to any locale, which probably means it is safe to assume it applies everywhere. The opinion cited above by PCH determined that private property is not exempt from DUI, and the vehicle in question was a three-wheeled ATV.

      You can argue whether DUI should apply to private property, but the truth is that this type of stautory language is very common. A typical statute defines DUI as:
      * “operating,”
      * a “vehicle,”
      * “within the state,” and
      * “under the influence.”

      So a defendant can attempt to negate one of these elements–that his actions did not constitute “operating,” that he was not operating a “vehicle,” that he was not “within the state,” or that he was not “under the influence.”

      • 0 avatar

        In many cases, vehicle code sections explicitly refer to being applicable only to roads.

        For example, Indiana’s basic speed law reads as follows: “A person may not drive a vehicle ***on a highway*** at a speed greater than is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing.” That limitation bars the state troopers from handing out speeding tickets at the race track.

        That sort of language wasn’t included in the state’s DUI law and the court’s interpretation doesn’t leave much room for doubt. Again, I don’t particularly like this, but it’s up to the state’s elected representatives to change the law if they so choose.

  • avatar

    As a lawyer who touches none of this in his day job, so recalling law school…

    Granted, different facts in every case, but it seems pretty clear he can be cited for DUI –

    Also seems to me like if he hurt someone, they could probably sue in tort too. Generally in sports, you assume risks of the sport, i.e., getting punched in a boxing match, but you don’t assume the risk of being shot. I don’t think I assume the risk of being rammed by a drunk guy on a racecourse.

  • avatar

    Is Jim Beam a type of rum? If it is, then putting the Coca-Cola ad on the front bumper of the car is total marketing genius.

  • avatar

    Words mean things and personally, I’m quite tired of police using this Language of Inevitability to evade personal responsibility for their actions.

    Notice the wording Jack uses. “…aren’t charged with assault.” “…aren’t charged with failure to control.” “…aren’t charged with six-point reckless op.”

    As if the agents of The State CHOOSING to charge someone with a legal violation is just some blameless act of nature – an inevitable consequence based on immutable physical laws of reality, like a lightning strike or a dropped object falling to earth.

    No, officer, if I do something illegal, I will not BE ARRESTED. YOU WILL CHOOSE TO ARREST ME. You will make a conscious choice to apprehend me. Your arresting me will not be some immutable reflexive action of the laws of physics and nature to my behavior – it will be a conscious, willful choice made by you.

    And don’t hand me this I Don’t Have A Choice business. You can quit being a cop and go find another job. You can refuse to arrest me. You can ignore what you saw. But as long as your brain functions, you are an autonomous, sapient individual and you have a choice.

  • avatar

    “When you crash your race car you aren’t charged with failure to control.”

    Sure, that’s true. On the other hand, if I surreptitiously cut a competitor’s brake lines, I probably WOULD be charged with one or more criminal offenses. That’s something that crosses the line between something handled internally to the racing organization vs. something that is handled externally by the legal system.

    So. There is, in fact, a line SOMEWHERE, and an off-road race on private property is not some kind temporal pocket where there are no laws beyond what the race organizers dictate. There’s no speed limits on this road, but you’re still not allowed to commit premeditated murder.

    Should a drunk racer in a wheel-to-wheel race cross that line? I personally think it should, but maybe it shouldn’t apply to a single-car event such as a time trial? It’s a fuzzy area, certainly.

  • avatar

    At all cost keep the BLOOD SUCKING FIEND lawyers out of racing!

  • avatar

    Drunk driving on private property is tough. You might hit a bump and spill your beer. But I hear drunk driving on private property in Indiana is possibly illegal. This is Texas Governor Rick Perry. Come check out Texas.

  • avatar

    Driver was black flagged and told to sit out the race. Driver returned to his car, returned to the track and intentionally crashed into another car. I don’t know whether a DUI in this circumstance applies or not, but if it doesn’t I would think reckless endangerment would.

    • 0 avatar

      Right. The Charge was what the police used to get the guy off private property at the request of the race officials. There isn’t a law written for every possible situation, so a couple triangular blocks get their corners knocked off to fit a round hole. The part of the story not mentioned, but you and I are assuming, is that the race organizers called in the police to get rid of the guy, who came back after being ejected from the race. That’s a major factor in the story.

  • avatar
    DC Bruce

    Here’s the interesting question, since it’s Indiana, a farm state. Can an underage person operate a motor vehicle on the farm? e.g a tractor, a pickup, etc.? I learned to drive when I was 14, in a pickup truck on a relative’s ranch in Colorado. It was a huge ranch; both my cousin (same age) and I drove all kinds of vehicles all over the ranch, although never on public roads. I’m sure that’s common on farms and ranches. (Actually, come to think of it, we drove some farm tractors on public roads although not frequently.)

    Oh, and some of the vehicles . . . like the 1942 Chevy flatbed with no brakes that carried a big water tank, and the 1949 Chevy pickup that I drove which carried fence fixing parts (poles, barbed wire, fence jacks, post hole diggers, cutting pliers, etc.) didn’t have license plates on them either. The flatbed had a fully unsynchronized transmission. So, it was essential to learn how to double-clutch in order to downshift . . . because that’s how you stopped the truck: when you got into first gear, you just switched off the ignition. (I should add that the ranch was in SE Colorado, which is high plains.)

  • avatar

    In general I think that on private property you should be able to do whatever the owner deems acceptable. If the owner says you can drive drunk around his track than you can. He pays the insurance and should be able to make those decisions.

    That being said if I were this owner I would definitely get this guy arrested. I’m assuming he was not ok’d to drink and race and in doing so he endangered the lives of everyone around him. Not to mention that it says he was black flagged and then crashed into someone intentionally. That’s assault in the least and attempted murder at the worst.

  • avatar

    If we could be sure that the only one killed was the drunk driver, there would be no problem. Have at it, anything that removes drunks from society is fine with me. It is the possibility of others being killed or injured that is the problem. The track certainly would be a juicy target for a lawsuit, if it allowed a drunk on the track. People whine about government “intrusion”. There would be no intrusion if the public were not so damn dumb. In my younger days, I was pretty much OK with whatever anyone did. As I have aged, I started seeing the consequences of idiot behavior. I am no longer OK with criminal stupidity. The state has a right to try and preserve life. If you want to commit suicide, that is OK by me, just don’t risk taking others with you.

  • avatar
    old fart

    It’s a little different since he wasn’t on his own property , but he should disciplined by the sanctioning body and/or the property owners. I believe anything that happens on the privacy of your own land that doesn’t hurt anyone else is your business not the states. The next thing you know If you have a blowout party and everyone is staying overnight but is fall down drunk the police will show up and arrest everyone , we lose more freedoms every day .

    • 0 avatar

      “It’s a little different since he wasn’t on his own property”

      Indiana doesn’t care who owns the property. The DUI statute applies everywhere in the state, on both public and private property. In the Manuwal case that I cited above, the driver was on his own property.

  • avatar
    Chicago Dude

    The strip of asphalt that was being driven on was “closed to the public”, but the private property certainly was not. The public, in the form of paying spectators, are the only thing keeping the race track operational.

    It’s almost certain that the arresting officers were being PAID BY THE PROPERTY OWNER to be present at the race.

    A farmer in Indiana can probably drive his tractor drunk with very little worry – the police aren’t around and aren’t paying attention to him.

  • avatar

    Don’t know if anybody should condone driving a race car drunk as your actions could have serious consequences on others. But that should be for the track to deal with. When we were teenagers we used to drive our friends Wagoneer on their 20 acres while drinking for fun. Prudent? No. Should that be illegal? Absolutely NOT.

  • avatar
    jim brewer

    DUI on private property is the trend and I suspect most states have it.

    First, what does “private property” have to do with it? People who drive drunk are a menace. They have no more business driving drunk on their own property than they have beating their wife in their own home.

    Second, its just one less thing for the prosecutors to worry about. Was that dirt road where the boys were whooping it up really a dedicated public roadway? When? Who cares? Certainly not me. Our lawyer friends from the Great White North have it right. Driving drunk on a race track makes it worse, not better.

    The “actual physical control” cases some talk about with drunks sleeping it off in the back seat are more interesting. I lived in a state that had such broad definition that the best thing for a driver feeling “under the weather” to do was to high-tail it home and hope for the best.

    Even worse is when the states charged the passenger drunk as an accessory to DWI for letting another person drive who also turns out to have been drunk. The “reasoning” is that the drunk driver, drunk though he may have been did the wrong thing by letting someone else drive. He should have known (somehow) that the other guy was drunk too.

  • avatar

    I would say it should be at the event organizers discretion. The event was closed to public but I am guessing it wasn’t just friends and family, so It was, for all intents and purposed a public event and an organized one at that.

  • avatar
    Big Al from Oz

    Here’s a funny story about a guy driving his esky (cooler) drunk in Australia.

    Watch the video of the motorised esky, sort of fits into TTAC and is about ‘driving drunk’.

    Ultimate use of a motorised esky.

  • avatar

    This one strikes pretty close to home as I sort of do this all the time. Have drinks at the family home, drive 4-wheeler out to cabin/pond whatever, all on personally built trails and roads. That being said not only is he clearly in violation of the law but he ought to be charged as well, the difference is in police access to the crime. In my (not-so) hypothetical situation any police officer attempting to cite me would have to trespass to gain access to the crime, and certainly would not have a warrant or reasonable suspicion to enter an area where I do this (assuming I’m not also hosing the wilderness with automatic weapons fire or fireworks). If, on the other hand, you are close enough to public property to be seen obviously driving drunk, or private property with invited police, then you do represent a risk to unsuspecting road users. How safe would you feel on the highway if some farmer’s parallel access road was populated by recklessly drunk farm hands traveling at high speeds? I’d bet the laws were written broadly for just this reason. For that matter, imagine a private dirt bike track going in immediately adjacent to a high school football field. Sure it’s private property, but the public is very much exposed to the risk and anyone would want to stop drunk driving there.

    Cases of police writing DUI for people sleeping in cars (even with keys IN ignition for warmth) is reprehensible and a textbook case of malicious or self-interested application of the criminal code (filling quota for ex.). Any officer writing such a ticket, or the prosecutor pursuing it, should be publicly shamed to the extent that future promotion is impossible. I’d say it’s a great indicator of someone not having the character to be trusted with a high responsibility job (not even running a day care). Also, it’s totally unrelated to the article’s example, which is absolutely all about shoving risk into other people’s sphere of influence.

  • avatar

    I might also add, if I was on the track that day I would be out of control angry at the guy driving drunk into people on purpose. Getting arrested would be the best possible outcome for him, and maybe it was here. It’s not mentioned in the article but I wouldn’t be suprised if the police closed on him because he was about to get in a fight and then smelled alcohol. I highly doubt they were out on the grid breathalyzing people or anything silly like that.

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