What’s NOT a Public Vehicular Area?

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

After the legislature broadened the definition of “public vehicular area” in 2006 to include areas “used by the public for vehicular traffic at any time,” many wondered whether there was any place where one could drive a vehicle (other than a private driveway) that wasn’t considered a public vehicular area. There was even some doubt about those private driveways, since members of the public can drive into them and sometimes do so even without an invitation from the resident. Moreover, North Carolina’s appellate courts had broadly interpreted the term for years—even when it was more narrowly defined.  But the court of appeals put the brakes on an overly expansive reading of public vehicular area last year, rejecting, in State v. Ricks, ___ N.C. App. ___, 764 S.E.2d 692 (2014), the State’s argument that all property used by the public for vehicular traffic is, in fact, a public vehicular area.

The facts in State v. Ricks. William Ricks was indicted for habitual impaired driving after a Rocky Mount police officer discovered him impaired while astride his moped with the engine running. Ricks and his moped were on a dirt driveway in a vacant lot located at an intersection in the city’s business district. The driveway, or “cut through,” extended across the lot from the street on one side of the intersection to the street on the other side. The officer who arrested Ricks testified that he had seen people walk and ride bicycles across the lot by using this drive. He said it was wide enough to drive a motor vehicle through, explaining that he had driven his patrol car into the cut through to approach Ricks. The officer said he had seen other cars use the cut through to turn around.

At trial, Ricks moved to dismiss the charges on the basis that the State failed to prove that he was in a public vehicular area. The trial court denied defendant’s motion. The trial court instructed the jury that a public vehicular area was “any area within the State of North Carolina used by the public for vehicular traffic at any time including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley or parking lot.” Defense counsel attempted to provide the full statutory definition of public vehicular area in closing arguments, but the State objected and was sustained.

The defendant appealed, arguing that the trial court erred in denying his motion to dismiss, in instructing the jury concerning the definition of a public vehicular area, and in sustaining the State’s objections to his closing argument.

Dirt drive NOT a public vehicular area. The court of appeals in Ricks concluded that the trial court erred in denying the defendant’s motion to dismiss as there was insufficient evidence that the cut through was a public vehicular area.

The State argued on appeal as it had below that it was required only to show that “the area [was] used by the public for vehicular traffic at any time,” and that its evidence was sufficient to meet that burden.  G.S. 20-4.01(32)(a). The officer had seen people walk and ride bicycles across an area of the vacant lot. That traffic maintained a dirt path, or cut through, wide enough to drive on. The court of appeals disagreed.

Illustrative examples set the standard. Although the examples in G.S. 20-4.01(32)(a) of areas used by the public for vehicular traffic are listed “by way of illustration and not limitation[,]” the court of appeals characterized them as “a component of the relevant definition” that “cannot be ignored.” Id. at ___; 764 S.E.2d at 696.

Those examples are driveways, roads, alleys and parking lots on the premises of:

  • a hospital, college, school, orphanage, or church,
  • a park, institution, or facility maintained and supported by the State or any of its subdivisions,
  • a business, office building, or residential or municipal establishment providing parking space whether the business is open or closed; or
  • federal property under the State’s jurisdiction.

 

The examples reveal that the definition contemplates “areas generally open to and used by the public for vehicular traffic as a matter of right or areas used for vehicular traffic that are associated with places generally open to and used by the public, such as driveways and parking lots to institutions and businesses open to the public.” Id. at ___; 764 S.E.2d at 696. Furthermore, the court noted that a separate subsection of the public vehicular area definition incorporates “‘private property used by vehicular traffic and designated by the private property owner as a public vehicular area.’” Id. (quoting G.S. 20-4.01(32)(d)). If every area used by the public for vehicular traffic at any time is a public vehicular area, this separate subsection would be superfluous, reasoned the court.

As to the particular area at issue, the court noted that the State presented no evidence as to its ownership or that it had been designated as a public vehicular area pursuant to G.S. 20-4.01(32)(d).  The court explained that a vacant lot was dissimilar to any of the examples provided in G.S. 20-4.01(32)(a) and rejected the idea that foot and bicycle traffic across the area was enough to turn it into a public vehicular area. The court held that to meet the definition of a public vehicular area in G.S. 20-4.01(32)(a), there must be evidence demonstrating that the property is similar in nature to the illustrative examples in the statute. The State failed to produce any such evidence in Ricks.

Finally, the court noted that even though it was reversing the defendant’s conviction for insufficient evidence, the trial court erred in abbreviating the definition of public vehicular area in the instructions to the jury and by preventing the defendant from arguing his position based on the remaining language in G.S. 20-4.01(32)(a).

What’s the significance?  Before the amendments in 2006, G.S. 20-4.01(32)(a), defined as a public vehicular area “an area generally open to and used by the public for vehicular traffic . . . .”  G.S. 20-4.01(32)(a) (2005) (emphasis added). Ricks in some measure restores that definition notwithstanding the amendment of the statute. Thus, driveways and parking areas on private property that is not the premises of a business, institution, or residential establishment are not public vehicular areas unless they have been formally designated as such.

10 comments on “What’s NOT a Public Vehicular Area?

  1. If you don’t mind opining upon this a bit further:
    Would a public beach where vehicular traffic (by permit) during parts of the year be considered a “public vehicular area” based on the broadened definition and/or this particular ruling?
    Also, if portions of said beach are actually part of a privately owned lot, however those portions are not marked with signs, fences, or other barriers, would the entirety of the beach still be considered a “public vehicular area”?
    Thanks

  2. Good question, J.C. Towler. In addition to the area-used-by-the-public subsection (G.S. 20-4.01(32)(a)) and the designated-private-property subsection (G.S. 20-4.01(32)(d)), there are two other types of public vehicular areas: “a beach area used by the public for vehicular traffic” (G.S. 20-4.01(32)(d)) and a road within a gated or non-gated subdivision or community (G.S. 20-4.01 (32)(c)).

    Thus, a beach area on which members of the public drive is a public vehicular area. In the absence of signs, fences, or other barriers, it seems likely that portions of private property that are part of the beach on which the public drives also are public vehicular areas.

    • Thus, since most of NC beaches are open to bicycle traffic, and bicycles count as a vehicle for DWI, most NC beaches are PVAs?

  3. Better question is how does one properly register their personal mode of transportation as a non-commercial, not for hire, strait truck (or private mode of transportation, not used in commerce in any way shape or form (Which IS a privilege), and not a commercial motor vehicle which requires a licensed ‘commercial driver license’ (class a, b, or c) to travel in (Which IS NOT a privilege.)?

    The tax collectors refuse to provide the proper forms to register a personal conveyance as a personal conveyance, and insist that everyone first title their conveyance as a ‘motor vehicle’ which can be used to engage in commerce doing anything form delivering news papers to hazardous materials for gain (engagement in commerce on the Public’s (Citizens) roads a privilege not a right.) and forcing the Citizens to obtain a class a b or c commercial driver license.

    Of course the State or its agents would never engage in deceptive practice or procedures (In a pigs eye), and capitalize on the willful ignorance of the masses, or draw on a so called State of Emergency (Necessity for the general welfare and protection of the ignorant smucks) to force the People into compliance to the commercial codes, regulated under the commerce clause.

  4. I suppose he just magically appeared there on that cut with his scooter? Or Scotty beamed him there? Or maybe he used Harry Potters broom to get him to that cut, with his running scooter…

  5. Would a place that charge admission into such a parking lot of a concert or other event with attendants at the entrance be considered a PVA?

  6. An officer charged a defendant with Careless and Reckless Driving on a PVA for spinning tires and doing donuts on the front lawn of our local high school (after hours). A criminal summons was issued. The area is used only for overflow parking during school events. In your opinion, was the officer right in bringing the charge?

  7. I have a private paring lot not directly accessible from a public thoroughfare (road). It is part of my private business, kennel. Access to the lot is down a private easement. The space is not available to non-customers, ever. The County wants portions of my parking lot reserved for special use (alleged physical handicaps) – I don’t believe the State should be interfering in this. Thoughts?

  8. Hello, I live way back off of the main state maintained road 1.6 miles off. We have to come through a farm on a dirt road marked private property to get to our neighborhood which is also marked private property. Each property owners property lines go to the center of the road. Am i correct that all Of this is considered private property and not subject to DWI laws in nc? Thank you

    • No thoughts on my question?

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.