Commentary: Protecting Our Private Spaces (June, 2015)

by John McClaughryJohn McClaughry

A recent decision by the Supreme Court of Iowa reminds us of a Vermont Supreme Court case in 1996, which two years later had a happy ending.

An Iowa woman called the police amid a domestic altercation in June 2013. When an officer arrived, she stepped out of her house to talk with him. She told the officer that she and her boyfriend frequently fought and he had refused to give her car keys because she was drunk and did not have a driver’s license.

The officer thereupon arrested the woman on her own front steps for being intoxicated in a public space. At trial, the woman argued that her front steps were not a public space under Iowa law, but the prosecutor said any modicum of public access would make a place public. She was convicted in a bench trial and raised the same issue on appeal.

The Iowa Supreme Court wasn’t buying the state’s argument. In an opinion by Justice Daryl Hecht, the Court said it did not believe that state lawmakers intended Iowa law to be so heavy-handed. “If the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce — unless one first obtained a liquor license,” Hecht wrote. By that standard, he concluded, an intoxicated person could be arrested and convicted for walking up the stairs of their own house after securing a ride home from a sober designated driver.

The Iowa case is reminiscent of a very similar case decided by the Vermont Supreme Court in 1996. A Rutland man was convicted of driving while intoxicated in his own driveway.

A state trooper followed a car into the driveway of Dennis Eckhardt. The trooper was in the process of writing up the driver for speeding, when the homeowner carefully drove his own car down the driveway to its parking place. The trooper, smelling liquor on Eckhardt’s breath, then arrested him for DUI.

It turned out that Eckhardt had not driven his car on the town road. A sober friend had driven him to the “top of his driveway”, then got out and allowed Eckhardt to navigate, without incident, to his parking area. He was, however, convicted of DUI.

The Vermont Supreme Court upheld the conviction of a citizen for driving while intoxicated in his own driveway, on the grounds that the driveway was a “public highway”, and other citizens, not being barred from the driveway, might suffer injury.

The Court’s unsigned opinion said that “defendant’s driveway, like most driveways in Vermont, is open to the general circulation of vehicles, and, in keeping with the objective of protecting the public from injury, thus constitutes a public highway …  Law enforcement officers should not have to wait until drunk drivers are in traffic on the highway to make a DUI stop.”

To its credit, the 1998 legislature refused to accept this decision. Thanks to Rep. Tom Koch (R-Barre), who retired in 2014, it inserted a section in a major revision of the DUI laws that overturned the Supreme Court’s Eckhardt holding. The Koch Amendment passed 121-21, and was later accepted by the Senate.

The Koch language says that “ ‘highway’ does not include the driveway which serves only a single-family or two-family residence of the operator. This exception shall not apply if a person causes the death of a person, causes bodily injury to a person, or causes damage to the personal property of another person, while operating a motor vehicle on a driveway…”

The Iowa Supreme Court has now happily come to the same view as the Vermont legislature that overturned the Eckhardt decision.

Those views reinforce the celebrated of ruling of Sir Edward Coke in 1604, translated from Latin as “everyone’s house is his safest refuge” (“Every man’s home is his castle.”) Your private space belongs to you, and if you aren’t engaging in criminal activity, the long arm of the law cannot reach into it. That’s one of the liberties that Vermonters should always cherish and defend.

- John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

 

 

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