You’ve been out for a night on the town. You made the decision to drive yourself home. You’ve made it to your driveway and see a police car blocking your way out with its lights flashing. Your stomach drops but then you remember… you’re at home. There’s no way you can be in trouble now. Or can you?

Many people are under the mistaken belief that they can’t be charged for driving under the influence when they are in their own driveways. That may not necessarily be the case. Even if you are on your own property, you may be charged with driving under the influence. To illustrate this point, let’s take a look at some relevant factors, including a recent case that made its way to the Michigan Supreme Court.

No matter what circumstances may be affecting your case, it’s prudent to seek out the knowledge and advice of an experienced Pennsylvania DUI defense lawyer. You can call Steven E. Kellis at (267) 314-6693 or contact us online to schedule a free, no-obligation case review at any time.

How the Definition of “Driveway” May Not Prevent a DUI Charge

In the Michigan Supreme Court case mentioned above, a man was charged with driving under the influence after an officer, responding to a noise complaint, saw the man back out of his garage and then back in once he noticed the officer. The man ended up testing three times the legal limit of alcohol. His attorneys moved to have the charges dismissed because the man had never left his property. They argued that a driveway is not “generally accessible to motor vehicles.”

The court in which the case was heard agreed with the attorneys. The court of appeals agreed as well. However, the man lost his case in the state’s supreme court. The court determined that the question was not would people have permission to access the area, but whether they could. The court continued with its decision, determining that the area was designed for travel, and there was nothing blocking any motor vehicle from turning into it.

Unlike some states, Pennsylvania’s DUI statute (§ 3802) does not mention that the suspect needs to be on a public roadway to be charged with DUI. Instead, the statute says that, “an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving.“

This statute clearly outlines a situation where an individual who merely has the keys to their vehicle and is inside the vehicle may be charged with DUI, even on their own private property.

What Is Considered “Driving” in Pennsylvania?

Like many other states, Pennsylvania has amended their DUI law to state that an individual needs to be, “in actual physical control of the movement of a vehicle,” in order to be charged with a DUI.

What does “actual physical control” mean? Generally, this phrasing is interpreted to refer to any instance where an individual could realistically be capable of driving the vehicle within a moment’s time.

Usually, what happens is that a police officer suspects that an individual has recently driven – or was just about to start driving – while they were under the influence of alcohol. In the past, someone could have possibly argued, “Well, I wasn’t driving!” in order to prevent being suspected of a true DUI, even though they actually had driven or were about to drive. For instance, they could have pulled over and jumped in the passenger seat.

But now, because the individual has the keys on their person and was physically capable of driving, the officer can accuse the individual of being in “actual physical control” rather than needing to demonstrate that they were observed driving.

Because of this law, individuals who want to avoid a DUI charge should avoid entering their vehicle with the keys on their person while being under the influence of alcohol or other substances. If you think you have an “edge case” where you disagree with the officer that you were in “actual physical control,” work with an experienced DUI lawyer in Pennsylvania to argue the facts, interpret the law, and help you seek to avoid or reduce your charges.

Penalties for a DUI in Pennsylvania

Pennsylvania has three different levels of DUI penalties depending on how intoxicated you were, how many recent offenses you have had, and whether there were “aggravating factors,” like an accident that led to an injury.

For an individual facing their first DUI, the penalties are as follows, according to their level of impairment:

General Impairment (Undetermined BAC or .08 to .099 BAC)

- - Ungraded misdemeanor
  - Up to six months probation
  - $300 fine
  - Alcohol highway safety school
  - Treatment, if ordered

High BAC (.10 to .159 BAC)

- - Ungraded misdemeanor
  - 12-month license suspension
  - 48 hours to six months prison
  - $500 – $5,000 fine
  - Alcohol highway safety school
  - Treatment, if ordered

Highest BAC (.16 BAC and Higher) or Controlled Substance

- Ungraded misdemeanor
- 12 month license suspension
- 72 hours to six months prison
- $1,000 – $5,000 fine
- Alcohol highway safety school
- Treatment, if ordered

Someone who has a prior DUI-related conviction will face much higher penalties. Even at the lowest level of General Impairment, an individual with one prior DUI offense will receive a 12-month license suspension, up to a $2,500 fine, a 1-year ignition interlock order, and anywhere from 5 days to 6 months of jail time.

What Are the Police Looking For to Find Drunk Drivers?

Generally, a police officer finds someone suspected of DUI in their own driveway because they previously observed them driving less-safely or driving in a way that gave the officer “reasonable suspicion” that the individual was DUI.

Driving behaviors that catch a cop’s attention include:

Speeding
Reckless/aggressive maneuvers
Following too closely
Running stop signs/stop lights
Revving the engine too fast
Music too loud (noise violation)
Swerving in lane
Crossing over the lane markers
Obnoxious behaviors, like honking excessively
Delayed reactions, such as when a light turns green

Neighbors or others on the road may also report such actions. This is especially common when an individual is in the neighborhood or on their own property making lots of noise, acting belligerent, or generally behaving in a way that attracts attention.

Note that most of these factors do not necessarily represent the commission of a crime, although a few involve traffic penalties that can lead to a citation. Because of this, it may be possible for your DUI defense attorney to establish that the officer was not justified in suspecting a DUI, or that they had insufficient evidence to firmly establish the commision of a DUI crime “beyond a reasonable doubt.”

Frequently Asked Questions About DUIs on Your Own Property

What is the legal limit in Pennsylvania?

The technical, per se blood alcohol (BAC) limit for a DUI in Pennsylvania is at least .08%. However, the law allows for an officer to charge you as long as they think you are, “rendered incapable of safely driving.” This can mean you have a very low or unmeasured BAC limit. In these situations, the officer needs strong evidence to establish the reasons they knew you were less-safe.

Can you get a DUI on your own property?

Yes. Pennsylvania law does not distinguish between DUIs that occur on public or private property. Any time you are driving or capable of operating the vehicle, you can be charged with a DUI.

Can police prove I was driving?

Police don’t necessarily need to prove you were driving to lead to a successful conviction, but they can. Evidence can include subpoenaed text messages, GPS trip information from your phone, telematics data from an onboard device, witness statements, and their own observations to allege that you had been driving near the time of your arrest. Sometimes, even a warm hood with a clinking engine can establish that a vehicle was recently operated, although an officer will want stronger evidence than this.

Can you get a DUI on a lawn mower in your own yard?

Yes, but this occurrence may be rare. A news story went viral in 2015 when a Pennsylvania man was arrested for driving drunk on a lawn mower with a box of beer under his arm. However, in this case, the man was on a public roadway.

Chances are, you won’t be bothered by police or accused of DUI unless you are operating your riding lawn mower erratically or otherwise posing a nuisance to neighbors and passers-by. However, there is always the chance you could be charged as long as you are operating a vehicle, which may include a lawn mower, depending on the interpretation of the law by juries and appeals court panels.

Can you get a DUI in a parked car?

Absolutely. If you have the keys on your person and are capable of operating the vehicle, then you may be in “actual physical control” of the vehicle in violation of § 3802.

Can I get a DUI if you are sleeping in your car drunk?

Yes. Many times, you can be alleged to have still been in “actual physical control” of the vehicle even if you were sleeping. The prosecutor can subpoena evidence to show that you had been operating your vehicle in the time before you fell asleep.

Witness statements and police officer observations can also allege this. In the event that you can somehow prove you were incapable of operating the vehicle and that you had not driven before you drank, you can still be charged with public intoxication, open container, drunk and disorderly, and other common DUI-related charges.

Pennsylvania Law May Mean You Have Good Reasons to Get a DUI Defense Lawyer

Generally, you can be charged with driving under the influence if you are located in your driveway. It would be highly unusual for a police officer to stop anyone while they were pulling in or out of their driveway, particularly out, but they do have that right. If someone calls in a complaint due to your behaviors, even on your own property, and the police find you to be operating your vehicle and suspect you of being under the influence of an intoxicating substance, you may find yourself facing charges.

It also means that you are not home-free if the police are following you and you make it home. There is no safe-zone in your driveway. If the police observe you to be driving in such a way that they believe you have been drinking prior to getting behind the wheel, they are well within their rights to charge you with DUI.

If you are charged with driving under the influence in Pennsylvania, reach out to our office. We are happy to offer you a free case evaluation at which time we will review the details of your stop and advise you of your legal options. Call (267) 314-6693 or contact us online today for assistance from a Pennsylvania DUI lawyer.