“Nebraska Supreme Court: No DUI in a Private Driveway”

by Walter Olson on October 19, 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.” [The Newspaper]

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Advice Goddess Blog
10.24.11 at 1:57 am

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1 captnhal 10.19.11 at 7:14 am

“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.”

If prosecutors had successfully argued that charging someone with a crime they “might” commit was appropriate, then couldn’t anyone be charged with any potential crime?

2 David Waranch 10.19.11 at 10:41 am

Absolutely the right decision. In addition to not being on public property, it appears that he was not “driving” and did not have actual physical control of the car. He was using it for shelter, which is also the law in Maryland under Atkinson v. State.

3 D 10.19.11 at 12:42 pm

Why did this get all the way to the Nebraska Supreme Court? It could have been handled with a b-slap to the sheriff and officer(s). It’s a good thing Jeffrey doesn’t have to pay that $1000…

4 KB 10.19.11 at 1:03 pm

Under that reasoning you could be arrested and charged with DUI while in a RV parked at a campground. Sounds like they wanted to pop this guy for something and this was the best they could do.

5 Ron Miller 10.19.11 at 3:25 pm

He expressed an intent to leave. He was not seeking shelter.

I understand both sides of this. I get where the court is coming from. I just wish we would stop pretending that this was a thought crime a la The Minority Report. Drunk and belligerent guy gets in a car and says he is leaving. If I put a gun to you head, is that legal because I have not actually pulled the trigger?

The big mistake was made by the police: they should have waited around the corner.

Really, how many people get drunk and sit in their cars in the driveway? How many innocent people are going to jail for this?

6 Jim Collins 10.19.11 at 3:27 pm

KB,
I have posted here before about a man who was charged with DUI after the Police woke him up at 4 AM from the bunk in his Winnebago. He was from out of town and had recieved permission to park overnight from the owner of a rural bar. The charges were eventually dropped, but, only after he spent over $5000 in legal fees. His reason for fighting it so hard was that his job required a security clearance that he would have lost had he been convicted.
If you follow the Police’s logic, you can be arrested for DUI in your home, if you have access to your car keys, because you have the ability to drive the vehicle.

7 smurfy 10.19.11 at 4:07 pm

“Really, how many people get drunk and sit in their cars in the driveway?”

I got a new car and did just that last week. Being a reader of blogs like this I did leave the alcohol in the house and sit in the passenger seat as I browsed the owners manual trying to figure out how to get the dashboard computer to recognize ‘Play Van Halen.” “Play Van Halen Dammit!” But there’s just no bullet proof way to hedge against an unreasonable officer. Oh, wait, isn’t that the court and prosecutor’s job?

Also, I bet the example of detailing your car in the driveway happens pretty regularly. Further, having been married in the past and not having an actual dog house, I’ve spent nights in the car in the driveway. Heaven forbid you want to turn on the radio.

8 Smart Dude 10.19.11 at 6:28 pm

The District Attorney and arresting officer must have thought the movie “Minority Report” was a procedural instruction video.

I am glad that “Pre-Crime” and ESP are no longer operational forensic enforcement strategies in Nebraska.

9 Bill H 10.20.11 at 1:22 pm

Ron, a couple of points:
1) You are permitted to change your mind. I do believe that’s where “free will” in it’s various incarnations comes from. If I were to say “I’m leaving”, then don’t, it seems QED I’ve changed my mind.
2) I keep my car keys with me quite a lot. Matter of fact, almost the only time I remove them from my pocket is either to keep them from falling to the ground while I’m crawling around under or inside someone else’s pile o’ junk, or I’m doing laundry. At no time does this express an intent to leave.
3) You’re equating an act which is plainly criminal at all times to one that was found to be not criminal at all? Really?
4) I get the guy was drunk, but maybe I misread- I didn’t see where he was belligerent. I would be a bit ticked off if the cops came into my driveway and went Minority Report on me, too. You say that isn’t how this was like the movie, but the proscecutor admitted it himself- they thought he MIGHT do something. Last I looked at a dictionary, ‘may do’ does not equal ‘did do’.
You do have one point right- the cops should have waited to see if a crime would be committed. Once the wheels touch the street, bust him. But not until then.
Answering your questions, yes, I have gotten drunk and gotten into my car in the driveway- it was the only stereo I owned at the time! I also rather liked the fact that I would be left alone. I’ve also slept in my car numerous times, sometimes falling asleep as soon as the ignition was switched off. Would that make me guilty of some public vagrancy law, or would I be just simply tired?
Lastly, it does seem that the Nebraska SC ruled that at least one innocent man went to jail for this.

10 Scott 10.22.11 at 5:56 pm

I think these type if cases are common. I heard of one case where a guy was too drunk to ride his motorcycle a mile home and so started pushing it. … DUI charge.

I’m still shocked I can get a DUI for riding my bicycle home from downtown.

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