Is the parking lot of a gated community w/access code for entry a "public place" for DWI purposes. I've read the law I can find and would like to invite all readers to weigh in on this question. Please defend your position. Thanks

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.

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.

The definition does not require that a substantial group of the public make actual entry on the property. It only says that they have access. Assuming that any visitor may gain entry (albeit after following whatever rules the association requires to get through the gate), then a substantial group of the public has access to the parking lot. Admittedly, that actual number will always remain small (which is why the placed is gated). But that is not the test. The test is who, theoretically, could gain access.

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 .]

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

I believe the San Antonio case referred to is Kapuscinski v. State, 878 S.W.2d 248 (1994).
I appreciate all of the well thought out responses to my post.

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

We have a large (very large) gated community that has asked the county to police their speed limits inside the community. The officers are asking me if it constitutes a public place for dwi purposes.

My initial response is yes, that the substantial group of the public would be the neighbors and their guests, etc. The thread I found was pretty old, so any new changes that I haven't found yet?

I have entered many gated communities by slipping on in behind another car going in. It's not that hard for the public to get into a gated community if they want to. Just have to wait for someone to open the gate. They are definitely open to the public, especially the public who have a right to be there.

Bergstrom Airforce Base was held to be a public place, despite the fact that it was a working military base with a fence all the way around it, and the only lawful access was through a gate guarded around the clock. If a fenced, guarded military base qualifies as a public place, it seems to me that a subdivision does too, despite the presence of a fence and gate.

Woodruff v. State, 899 S.W.2d 443 (Tex. App. - Austin 1995).

Great cite....that case led me to some others as well. Thanks!