In State v. McCave, the Nebraska Supreme Court found that one cannot be convicted of a DUI (Driving Under the Influence) when operating a vehicle on private property that is not open to public access. State v. McCave, 282 Neb. 500 (2011). The Nebraska Supreme Court held that, as a matter of law, a residential driveway is not private property that is open to public access. The Nebraska Supreme Court reversed McCave's conviction for DUI while parked in a private driveway. The Court found that the police did not have probable cause to believe that McCave was an intoxicated person in control of a vehicle on private property open to public access.
Under Nebraska, a person may be convicted of a DUI if said person is in actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug when such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or when such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath. Neb. Rev. Stat. § 60-6,196. However, Nebraska's DUI laws don't apply to a person's operation or control of a vehicle on private property that is not open to public access.
In State v. Prater, 268 Neb. 655, 686 N.W.2d 638 896 (2004), the Nebraska Supreme Court held that an apartment building parking lot is private property open to public access. The Court in McCave held that a private driveway is not private property open to public access as members of the general public have no right or implied permission to use a private residential driveway or the ability to enter the driveway in the same sense that a member of the public might drive through or use a private parking lot.
In summary, unless a suspect is in a location where the suspect could not have been unless the suspect had driven the vehicle while intoxicated (see State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987) and State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986)) or there is sufficient evidence to support that a suspect has driven a vehicle on a public road while intoxicated, a person cannot be convicted of a DUI while parked in a private driveway.
If you're facing a DUI Charge, contact criminal defense lawyers at Stephanie Flynn Law, or call (402) 325-8469, to speak with an attorney who can help you through the process.