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| The gate only limits some portion of the public from access to the parking lot. It does not exclude the public. Visitors and members of the community are part of the public. Even in a store parking lot, certain members of the public are excluded. For example, some stores don't permit really big trucks to park in their lot. That doesn't mean it isn't a public lot. I certainly think the owners of homes and their visitors is a substantial group of the public. Visitors is a pretty big group. And their access is only limited by the theoretical number of friends the neighborhood could invite over a lifetime. |
| Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001 |
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| No A "substantial group of the public" (Penal Code Sec. 1.07(a)(40) means just that. The fact that "some" members of the public can gain entry does not mean that the gated community is open to a substantial portion of the public. |
| Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001 |
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| This sounded a lot like a law school exam question to begin with. Is DWI on semi-private parking lots a big problem to begin with? I am not sure why the legislature chose "substantial group of the public" as the dividing line. Obviously, it wanted to make some privately owned property a "public place", a sort of oxymoron, isn't it? But what sort of properties? I tend to believe the definition was changed more for the benefit of "public intoxication" prosecutions than DWI. Did the person have to drive on a more public place in order to get to the "community"? Charge him with driving just outside the gate. I am sure someone will respond that we may be talking about easements which are dedicated to public use or "common areas", and therefore technically not "private" property. Nailor, 949 S.W.2d at 359, of course, says "that a lot is [enclosed] verses [wide and open] is irrelevant to the determination of whether the place is one to which the public has access. The relevant inquiry is whether the public can enter the premises." I guess the really relevant inquiry is "can enter how easily or often". "Public" just isn't the best term to describe the concept. [This message was edited by Martin Peterson on 01-29-02 at .] |
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| As an AGC for DPS and associate member, I tend to lurk and not post. But I decided to weigh in on this one. I believe the Woodruff case is the most analagous, but there is another case out of San Antonio where the court decided that a paid parking garage for a hotel on the Riverwalk was a "public place" for purposes of DWI because the hotel permitted non-guests to park as long as they paid the fee. Janette ansolabehere |
| Posts: 674 | Location: Austin, Texas, United States | Registered: March 28, 2001 |
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| Gosh Janette, don't be shy. We have criminals and defense attys who post on this site--so there is plenty of room for a DPS AGC. Terry |
| Posts: 687 | Location: Beeville, Texas, U.S.A. | Registered: March 22, 2001 |
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