Appeals Court Sides With Driveway Drunken Driver


     DETROIT (CN) — A man who drunkenly got behind the wheel but never left his driveway, should not have been charged with driving while intoxicated, the divided Michigan Court of Appeals ruled.
     It all went down in March 2014 when Northville police received three noise complaints about Gino Rea, who the ruling says “had a lot to drink and withdrew to his Cadillac sedan to listen to loud music.”
     Officers first found Rea, who was 47 at the time, sitting in his car with the driver’s door ajar, parked deep in his driveway. Rea’s Cadillac was nowhere to be seen when they responded to the second complaint, however, and there was no music playing either.
     While walking up Rea’s driveway after the third call, however, an officer saw Rea’s garage door open, and his Cadillac began rolling out.
     It made it about 25 feet before coming to a stop, never leaving the driveway, then pulled back into the garage.
     Police arrested Rea as he made his way back into the house and charged him with an OWI, short for operating while intoxicated.
     The Oakland County Circuit Court quashed the case right away, however, saying “the upper portion of Defendant’s private residential driveway” does not constitute an area “generally accessible to motor vehicles.”
     Prosecutors failed Tuesday to revive their case on appeal.
     “This particular area of defendant’s driveway is akin to a moat; it is an area which strangers are forbidden to cross but defendant could wade at will,” Presiding Judge Elizbeth Gleicher wrote for a divided three-judge panel of the Michigan Court of Appeals.
     Since Rea “drove but only in this private area” after consuming alcohol, Gleicher said the “charges were not supportable.”
     Judge Kathleen Jansen called the “moat” comparison silly in a brief dissent, saying the accessibility of Rea’s driveway to the public should have been resolved at trial, not before.
     Unlike “a moat that strangers were forbidden to cross,” Jansen said, “it is unclear whether other vehicles were routinely permitted or forbidden to access the portion of defendant’s driveway on which he operated his vehicle.”
     Gleicher’s four-page ruling dissects the language of the statute in question, MCL 257.625(1), which says: “A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated.”
     “Had the Legislature wanted to criminalize driving while intoxicated in one’s own driveway, it could have outlawed the operation of a motor vehicle in any place ‘accessible to motor vehicles,’ omitting the adverb ‘generally,'” Gleicher emphasized.
     She said “the meanings of the term ‘generally’ in this context compel the conclusion that the Legislature meant to limit the reach of MCL 257.625(1).”
     Since Rea’s private driveway was not “open to the public or generally accessible to motor vehicles,” no OWI was warranted, the court found.
     In a footnote, the majority emphasized the narrowness of its holding. Gleicher said an alternate outcome could be in order if a driveway is part of a multiple-family dwelling or an apartment complex, or if the vehicle operator proceeds “to an area of his driveway where he could encounter a member of the general public.”
     Jansen’s dissent says this footnote reveals why dismissal of the charge against Rea was inappropriate.
     “In this case, there was no evidence presented at the preliminary examination regarding the frequency with which other vehicles accessed defendant’s driveway,” she wrote. “Therefore, I conclude that the issue whether the upper portion of the driveway constitutes an area generally accessible to motor vehicles is a question of fact for the trier of fact to determine based on the evidence presented at trial.”
     The March 2014 charge against Rea would have been his third offense, and thus a felony, having faced two misdemeanor OWIs in the 1980s.

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