Ask Deandra: Can I Get a DWI on Private Property?

A parking lot at a bar, a restaurant, a grocery store or a mall is a public place even though a private company owns the asphalt. The property being privately owned does not make it exempt.

Texas courts have held that a gated community with a guard was a public place, and that a fenced military base with 24-hour guards was a public place. The cases that come out the other way are narrow and turn on genuine isolation.

Here is the longer answer: what the statute actually says, what the courts have actually held, where the line genuinely falls, and what the State still has to prove even after it clears this element.

What the Statute Actually Says

Penal Code Section 1.07(a)(40) defines a public place as any place to which the public or a substantial group of the public has access, and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

That is the whole enumerated list. Streets, highways, and the common areas of six kinds of building. Restaurants are not on it. Bars are not on it. Parking lots are not on it.

Two things follow, and they pull in opposite directions.

• The list is expressly not exhaustive. The words are includes, but is not limited to. So the absence of parking lots from the list decides nothing. The operative language is the first clause: any place to which the public or a substantial group of the public has access.
• The common areas of apartment houses are on the list. Everywhere else is defined by the courts.

The public place element is not unique to ordinary DWI. It appears in identical words in Section 49.045, DWI with a child passenger, and in the motor vehicle prongs of intoxication assault and intoxication manslaughter. Each of those requires operating a motor vehicle in a public place. So this element is a real defense across the whole range of intoxication driving offenses, not just the misdemeanor.

The Test Is Access, Not Ownership

Texas courts read the definition as open ended and decide it case by case. In Loera v. State, the Dallas court described the definition as open ended, leaving discretion to the courts to expand its parameters where appropriate, and framed the critical inquiry as whether the place is one to which the public has access, with access meaning the freedom, means, power or opportunity of approaching or passing to and from.

The sharper version of the same idea comes from Woodruff v. State, quoted by the San Antonio court in State v. Gerstenkorn: the proper focus should be on the extent of actual access and not on the formalities by which access is gained.

Read that sentence twice, because it is the whole rule. Not the title to the land. Not the sign at the entrance. Not the fence. Whether people can in fact get in.

Where This Applies

Business parking lots

The clearest cases. In Dornbusch v. State, involving a restaurant parking lot, the Fort Worth court put it plainly: a parking lot at a public place is not legally different than a roadway for purposes of a DWI arrest or conviction. Hotel lots and marina lots have been held the same way. See Shaub v. State, where the relevant inquiry was stated simply as whether the public has access to it.

Apartment complexes

Here the statute does the work directly, because the common areas of apartment houses are named in Section 1.07(a)(40). Parking areas, driveways and access roads within a complex are common areas. Whether a gate changes that is discussed below, and the answer is usually no.

Garages attached to businesses and hospitals

Hospitals are also named in the statute. A multi-level garage the public uses to reach a business or a hospital generally qualifies for the same reason a surface lot does.

Gates, guards and fences

This is where the conventional wisdom is not just incomplete but misleading, so it is worth being blunt.

In Gerstenkorn, the location was a gated community with a security guard and controlled entry. The trial court granted a motion to suppress. The State appealed and won: the gated community described in that record was a public place as defined by the Penal Code. The court reasoned from Woodruff, where an access-controlled Air Force base with 24-hour guards was also held to be a public place, and found nothing showing the gated community was more restrictive than that.

So a gate is not a shield. Neither is a guard. What matters is whether, on the facts of that night, people could get in. In one apartment complex case the analysis turned on the gate simply being open at the time, which is an evidentiary question rather than a category rule.

Where it genuinely does come out the other way

The exceptions are real but narrow, and they turn on actual isolation rather than on the word private. Texas courts have found no public place on facts like an unpaved rural driveway roughly a quarter mile off a county road, described as isolated and secluded, and the driveway of a private residence.

Even that second category is not safe as a general rule. In Loera, the walkway and driveway of a private home was held to be a public place, because it was designed to give people access to the front door and, in the court’s words, under normal circumstances the common citizen would have the right to approach the front door.

The working rule: if a person could drive to where you were from a public street without being turned away, assume a Texas court will call it a public place, and treat anything else as a fact question to be developed rather than a defense to be assumed.

Why This Surprises People

Most people picture a DWI stop as being pulled over on a street, so the idea of an arrest that begins and ends in a parking lot feels wrong to them. But officers routinely make DWI arrests on facts confined entirely to a lot: a call about erratic driving in the lot, a collision with a parked car, or an observation of someone who appears intoxicated attempting to start or move a vehicle. None of that requires the vehicle to have ever touched a public road.

Being on private property does not make the stop or the arrest unlawful. The public place element is an element of the offense, to be litigated at trial.

What Still Has to Be Proven

A public place finding does not establish a DWI. The State still has to prove operation and intoxication, and both matter as much in a lot as on a highway.

Operating does not mean driving, and it does not mean intending to drive

The Court of Criminal Appeals framed it in Denton v. State as whether the totality of the circumstances demonstrates that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use. That standard was reaffirmed in Maciel v. State, which describes operating as exerting personal effort to cause the vehicle to function. It reaches conduct well short of driving.

There is no intent element. Penal Code Section 49.11 provides that proof of a culpable mental state is not required for a Chapter 49 offense, with a single exception for the open container offense. The Denton test asks what you did to the vehicle, not what you meant to do next.

Facts that look like absence of intent still matter, but as circumstantial evidence that no enabling action was taken. Compare two sleeping-in-the-car cases. In one, a driver asleep in the driver’s seat with the engine running, parked partly on a roadside, was held to have been operating. In Texas Department of Public Safety v. Allocca, a man asleep with the engine running for air conditioning, in his own designated space behind his workplace, seat reclined, transmission in park and lights off, was held not to have taken action to affect the functioning of the vehicle in a manner that would enable its use. The reclined seat mattered. What decides these cases is gear position, seat position, lights and location, not what the driver says about his intentions.

A drafting note for anyone who has read a definition of operating somewhere and plans to rely on it: in Kirsch v. State the Court of Criminal Appeals held that a trial court commits error by defining operate for the jury at all, because the term is not defined in the Penal Code. Jurors apply the ordinary meaning of the word, which is broader and less predictable than any formula.

Three Things the Public Place Element Does Not Save You From

• Boating. Section 49.06 makes it an offense to be intoxicated while operating a watercraft, full stop. There is no public place requirement anywhere in it. A private lake, a private pond, a stock tank on your own land: boating while intoxicated reaches all of them. People with lake houses assume the opposite and they are wrong. The same is true of the flying offense, and the watercraft and aircraft prongs of intoxication assault and intoxication manslaughter have no location element either.
• Reckless driving. Transportation Code Section 545.401 expressly applies to a private access way or parking area provided for a client or patron by a business, as well as to a highway or other public place. So business customer parking is covered by statute regardless of how the DWI public place analysis comes out. And if intoxicated driving on genuinely private property injures or kills someone, the ordinary Penal Code offenses that would apply carry no location element at all.
• Your license. This is the one that catches people, and it is worth understanding precisely. Both administrative suspension chapters do contain a public place requirement: Section 524.012(b) on the failed-test side and Section 724.011(a) on the refusal side. But the standard is different. At the administrative hearing the issue under Section 724.042 is whether probable cause existed to believe the person was operating a motor vehicle in a public place while intoxicated. Probable cause, before an administrative law judge. A criminal conviction requires proof of the same element beyond a reasonable doubt to a jury. The same facts can fail the criminal standard and clear the administrative one, which means a driver can win the criminal case on public place and still lose the license.

What to Do If You Were Arrested in a Lot

• Request the administrative hearing within 15 days. Section 724.041(a). The deadline runs from the date you received the notice of suspension, and it runs whether or not the public place question is a good one. Miss it and the suspension takes effect on its own, however strong the defense would have been. Here is how the ALR hearing works.
• Get the physical facts documented while they still exist. Whether the gate was open. Whether there was a guard, and whether the guard turns anyone away. Whether there are signs restricting access. Whether the lot connects directly to a street. Photographs, the property’s own access policy, and the video all decay quickly.
• Do not assume the location is a defense. Treat it as a fact question that has to be developed. Most parking lot cases lose on this element. The ones that win are developed early.
• Understand what else is in play. Public intoxication under Section 49.02 turns on the same public place definition, so getting out of the car does not necessarily move you out of reach.

The Bottom Line

Texas DWI law requires a public place, not a public road, and public place means somewhere the public can actually get to. Parking lots qualify. Apartment common areas are named in the statute itself. Gates and guards have not been enough, in the cases that have addressed them, and the exceptions run to genuinely isolated rural driveways rather than to anything most people would call private property.

Where the location question is real, it is worth developing carefully and early, because it is an element of the offense and the State has to prove it beyond a reasonable doubt. Just do not confuse a fact question worth litigating with a defense you already have.

Private Property DWI Defense at Deandra Grant Law

Deandra Grant Law represents clients across Dallas, Fort Worth, Plano, McKinney, Frisco, Allen, Lewisville, Denton, Rockwall and Waco. Deandra M. Grant holds a Master of Science in Pharmaceutical Science, the ACS-CHAL Forensic Lawyer-Scientist designation and is the author of the Texas DWI Manual.

If you were arrested for DWI on private property or in a parking lot, whether the location actually qualifies as a public place is a real, fact-specific question and it can be worth challenging. It is also a question that gets harder to develop as the photographs, the access policies and the video disappear. Call (214) 225-7117 or visit texasdwisite.com. Remember that you have only 15 days from the date you are served with your notice of suspension to request an administrative hearing.

Have a DWI question you want answered in this series? Submit it at texasdwisite.com and it may be featured in a future Ask Deandra post.