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Can You Be Charged for DUI on Private Property?

Picture of alcohol, handcuffs, and car keys

Many ask whether a person can be charged for DUI if they are driving on private property and not on a public road. The answer in West Virginia has changed over the years and now depends on if someone is injured or kill.

For years the DUI laws made it illegal to drive a motor vehicle “in this State” while under the influence of drugs or alcohol. Law enforcement officers generally enforced the DUI laws on public roads and property. However, in 2016, a case went to the Supreme Court of Appeals of West Virginia where an individual was charged with driving an ATV on private property. The Supreme Court ruled that the phrase “in this State” meant anywhere within the physical boundaries of West Virginia, even if the vehicle was driven only on private property not open to the general public.

In response to that decision, the Legislature amended the DUI laws to say that “in this State” does not mean or include driving a vehicle solely and exclusively on one’s own property. Thus, the Legislature only made it illegal to drive while under the influence if a person was driving on public roads or public property.

Federal law allows the withholding of federal funding to states that make exceptions to the federal mandate that defines DUI as having a BAC level of .08 or high while operating a motor vehicle regardless of whether it is on a public road or not. As such, West Virginia stood to lose $58 million per year in federal highway funding if the law was not changed to make it illegal to drive anywhere within the State while under the influence.

When the DUI laws were reformed in 2020, the Legislature made yet another change to the law as it relates to the meaning of “in this State.” The change was intended to avoid losing federal highway funding while maintaining the policy of not criminalizing driving under the influence on private property and other areas not publicly maintained.

When the new DUI laws go into effect, it will read in pertinent part:

the phrase “in this state” shall mean anywhere within the physical boundaries of this state, including, but not limited to, publicly maintained streets and highways, and subdivision streets or other areas not publicly maintained but nonetheless open to the use of the public for purposes of vehicular travel

However, for purposes of certain DUI offenses, the term “in this State” does not mean or include driving or operating a vehicle solely and exclusively on one’s own property in an area not open to the use of the public for purposes of vehicular travel. Those DUI offenses include:

  • Regular DUI
  • Aggravated DUI
  • Habitual User
  • Permitting a DUI
  • DUI Under 21

What does this mean? You can only be charged for a DUI offense while driving on private property if you've injured or killed someone. Otherwise, the DUI laws only apply to public streets, highways, and areas open to the public.