Can You Get A DUI On Private Property Or In A Driveway?

April 13, 2022 by Anthony Riccio

The short answer is ‘yes,’ a person can be charged with DUI – or ‘operating under the influence (OUI) as the Commonwealth refers to it – on private property or in a driveway. But drivers can’t be charged on just any private property or driveway. The DUI/OUI laws in Massachusetts are designed to protect members of the public at large from the activities of persons who are driving while under the influence of alcohol, drugs, or other chemical substances.

The places where one can legally drive drunk are not many because they have to be places where other members of the public are not driving. Much of the time, whether OUI laws apply because of where a person was driving is not a contended issue. Yet on occasion, a person can be charged with a DUI while driving in a place where they are not prohibited from driving drunk.

At Riccio Law, we are passionate about freedom and individual rights. Our Attleboro criminal defense attorney will investigate thoroughly and find every way to challenge a prosecutor’s charges.

Massachusetts Drunk Driving Laws

Massachusetts drunk driving laws punish persons who operate motor vehicles with blood alcohol concentrations of .08 or higher or who are under the influence of alcohol or drugs when they drive:

‘… upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees …’

Whether or not a person charged with OUI was driving in a prohibited area is a fact that a prosecutor must prove to get a conviction. There are three considerations, and proving any of these is necessary to get a conviction for OUI.

  • Was it a public way?
  • Did the public have access?
  • Was the public an invitee or licensee?

When driving on federal lands within the Commonwealth, federal laws also prohibit drivers from operating motor vehicles on their roads while under the influence of alcohol or drugs – including legally used alcohol or drugs. Though the penalties may be similar under both state and federal law, the jurisdictions are different, and a DUI charged on federal land will be heard in federal court. 

What is a ‘Public Way’?

The Commonwealth considers a public way to be a driving path that is open to the public and controlled and maintained by the government. Examples include:

  • Interstate highways
  • State highways
  • Streets
  • Roads

Indications that a person is driving on a public way would be any of the following circumstances.

  • Pavement
  • Street lights
  • Traffic signs and signals
  • Curbing
  • Cross streets
  • Houses or businesses 
  • Absence of signs prohibiting public access

Places the Public Has a ‘Right of Access’

Places that the public has a right to access that are not considered a ‘way’ are usually privately owned driving paths such as driveways, parking areas, and other access routes where the public is allowed to travel. An important consideration is that the place where a person drives drunk is the place that is designated for vehicle traffic and not some other part of the property.  

Where Does the Public Have Access as an ‘Invitee or Licensee’?

The terms invitee and licensee come from property law and describe the type of visitor that a person or business might allow to come onto their property. The distinction is relevant to determine the level of responsibility a landowner has to each such person to protect them from being injured while on the property. 

A typical invitee is the customer of a business establishment. A typical licensee is visiting a non-business property for social reasons. 

That distinction is not relevant in a DUI prosecution. What is relevant is that the public – as invitees or licensees – are permissive users of certain roadways. And where the public has permission to drive, drunk driving is not allowed. 

Case in Point

A case from 2011 illustrates that what is or is not a public way is not always easy to determine. In Commonwealth vs. Lisa Virgilio, Ms. Virgilio challenged her OUI conviction. The issue on appeal was whether the place where she had been operating her motor vehicle was a public way. The place in question was a private driveway that was used by three families to access two residential buildings.  

In determining that the driveway was not a public way, the court pointed out that the driveway was used only for access by the residents of the two buildings. There were no businesses or other public accommodations in the area. And there was nothing about the objective appearance of the driveway that would lead members of the general public to believe that the road was available for their use even though use by the public was not specifically prohibited. 

Your Best Defense Starts With a Strong Offense

When you are facing DUI/OUI charges in Massachusetts, there is a lot at stake. Not only are there fines, possible jail time, and a driver’s license suspension on the line, but the stigma and embarrassment of a criminal conviction can be a significant impediment to future plans.  

With so much to lose, you have to present the very best defense possible and give yourself every legal advantage to beat the charges. 

Criminal defense attorney Anthony Riccio is a former prosecuting attorney who now uses the knowledge and skills he gained in prosecuting DUI/OUI criminal cases to fight for the rights of persons facing drunk driving charges. Known for his integrity and aggressive advocacy, attorney Riccio has obtained acquittals for DUI/OUI clients in over 80% of his trials. Riccio Law has obtained not guilty verdicts when defending clients that were involved in car accidents or were witnessed driving erratically or failed breathalyzer and field sobriety tests or admitted to drinking.

Hire a defense attorney with a proven record of success defending OUI clients. Call Riccio Law at 617-404-8878 to schedule a free consultation.