Tuesday, April 16, 2024

DUI News Blog

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Can the Police Make and Arrest for DUI on Private Property?

Can the Police make an arrest for DUI on Private Property?

               The answer to this question will of course depend on the State in which you live.  However, in Florida, the answer is a resounding, YES!!  Florida’s DUI law found in Florida Statute §316.193 allows for law enforcement to make an arrest for DUI anytime a person is “driving or in actual physical control of a vehicle with this state.” 

Elsewhere in Chapter 316, in the section entitled ‘Enforcement,” Florida law is clear that the traffic laws of this state are to be enforced by counties and municipalities on:

… all the streets and highways thereof and elsewhere throughout the county or municipality wherever the public has the right to travel by motor vehicle. In addition, the police department may be required by a municipality to enforce the traffic laws of this state on any private or limited access road or roads over which the municipality has jurisdiction pursuant to a written agreement entered into under s. 316.006(2)(b).

§ 316.640 Fla. Stat.

So why are DUIs treated differently?  The meaning of the phrase “within this state” was decided by the First District Court of Appeal in Zink v. State, 448 So. 2d 1196 (Fla 1st DCA 1984).  The First DCA decided that instead of reading section 316.193 in para materia (together) with the rest of the statute, they would let the plain and clear meaning of the words used by the legislature in § 316.193 speak for themselves.  The First DCA found the phrase “within this state” to clearly mean anywhere within the state whether public or private and not to be ambiguous, but a clear indication of the legislature’s intent to expand the area over which this section was applicable to encompass all lands in the state. See Id.

The State of Washington came to a different conclusion deciding in a 1981 case that their law, which prohibits driving while under the influence of intoxicants upon highways and elsewhere throughout the state” only applied to public roadways, so an intoxicated driver in a private field did not violate the statute.  The Washington court found that it would be an unreasonable exercise of the state’s police power to prohibit what occurred on private property.  See State v. Day, 96 Wn. 2d 646, 96 Wash. 2d 646, 638 P.2d 546 (Wash. 1981).

Be sure to contact an experienced DUI attorney in your state to find out if the State can enforce their DUI laws on private property within your state.

About the Author: David Katz
David Katz is one of only 4 Board Certified DUI Defense Specialists in the state of Florida. In fact, both he and his partner James D. Phillips, Jr. are Board Certified so half of the Board Certified DUI Defense Specialists in Florida work at Katz & Phillips, P.A. David is also a Regent (Member of the Board of Directors) of the National College For DUI Defense and a member of its faculty. David is a nationally known leader in DUI Defense and continues to teach other lawyers how to defend DUI cases across the country. David has participated in and been lead attorney in hearings in Orange, Seminole, and Lake Counties which resulted in Breath Test results being inadmissible in those counties, some for more than a decade. David has specialized training on the Intoxilyzer 8000 (the only machine used in Florida to test breath) directly from the president of the manufacturer CMI Inc. To learn more about David Katz, click here.

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David Katz

David Katz

David Katz is one of only 4 Board Certified DUI Defense Experts practicing in the State of Florida. David achieved recognition as a DUI Defense Expert in July of 2012 from the National College for DUI Defense, the only organizations accredited by the American Bar Association to award Board Certification in the area of DUI Defense. A founding partner of Katz & Phillips, P.A., David Katz is a former Assistant State Attorney and DUI / Intoxilyzer Lead Attorney with the Seminole County State Attorney’s Office. David has prosecuted cases in both Orange and Seminole Counties. Chosen by the Florida Prosecuting Attorney’s Association, David taught DUI trial skills to new prosecutors statewide. As the Seminole County Intoxilyzer Lead Attorney he received unique training and experience with the Intoxilyzer 8000, including access to the manufacturer of the device, which he now uses to aid in the defense of DUI cases. David has been the featured speaker at Continuing Legal Education Seminars focused on DUI Defense, lecturing to attorneys practicing DUI defense throughout the country. David is also the author or co-author of nine books on DUI defense including three Inside the Minds series books focusing on DUI cases. As a defense attorney David has focused his practice on DUI defense and has played a key role in the suppression of thousands of breath test results in Central Florida and surrounding areas, acting as the lead attorney in suppression hearings focusing on source code and machine malfunction issues. David is truly focused on his clients needs. He has received the 2012 AVVO Client Choice Award and the 2013 Client Distinction Award from Martindale-Hubbell. Further, David was recently featured in NEWSWEEK Magazines' 2012 Showcase of Leading Criminal Defense Attorneys. The only dedicated DUI defense attorney to be featured this year. PROFESSIONAL AFFILIATIONS: The National College for DUI Defense The National Association of Criminal Defense Lawyers The Florida Association of Criminal Defense Lawyers The Central Florida Association of Criminal Defense Lawyers The American Bar Association The Florida Bar Association The Orange County Bar Association The Seminole County Bar Association The Lake County Bar Association DUI is not recognized as a specialized area of law in Florida, therefore Mr. Katz is not certified as a Specialist by the Florida Bar.