Aside from the ruling that a person 1/4 mil efrom a county road, blah blah blah doesn't constitute a public place (Fowler v. State, 65 S.W.3d 116, 119), does anyone know of case law regarding a driveway in an urban area?
Long and short of the case it is:
Officers in the area on a shots fired call see a woman in her running vehicle in her own driveway and approach her to ask her if she had heard anything. At that point that find that she is intoxicated. They ask her what she was doing and she said, "I'm going to go out to find my husband." She cannot complete the SFSTs as she was falling down drunk.
Sooooo... personally I think showing "operating" for a DWI is covered by totality including her stated intent. (but I'm up for a discussion on that too)
But what I can't find is whether her driveway, parked 20 feet from the street, is a public place. This would also place the vehicle outside the city easement.
It seems to me that if a front yard and any area leading to a front porch is valid for a P.I. charge (Loera, 14 S.W.3d at 469. AND Cornealius v. State, 900 S.W.2d 731, 734 (Tex. Crim. App. 1995). then a driveway in an urban setting would float.
I'm not jonesing for a DWI here, but some sort of guideline would help.
Thanks in advance.
Wow, seems like a good case for an attempted DWI, except that there is no such thing since there isn't a mental state.
Personally, sounds like some excellent community policing.
How about a good P.I charge?
IMHO - You have operation, you clearly have intoxication and (unless there's an unmentioned gate at the end of her driveway, "No Trespassing" signs, etc..), you have a place where a substantial group of the public has access to = Public Place.
I realize that every County's thoughts and jury pools differ, but in our County - we'd have a DWI.
This sounds like an excellent criminal attempt to DWI..no matter what. Or charge it as a PI. I can see some real problems selling this to a jury with the defendant in her driveway.
I had a case kinda like that once. The FW court held that a front yard in an urban neighborhood was a "public place" for a PI arrest. Aguilera v. State, No. 2-04-096-CR, 2004 WL 2914316 at *3 (Tex.App. -- Fort Worth December 16, 2004, pet. ref'd) (not published); see also State v. Gerstenkorn, 239 S.W.3d 357 (Tex.App. - San Antonio 2007, no pet.) (gated community was a public place).
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