Can I Get A DUI Riding An Off-Road Vehicle (ORV) On Private Property?Jonathan Rands
A person may be charged for a variety of things, but the better question is whether a person can be “lawfully” charged and can the charge be lawfully proven? Like many questions of law, the answer
A person may be charged for a variety of things, but the better question is whether a person can be “lawfully” charged and can the charge be lawfully proven? Like many questions of law, the answer depends on the specific facts of each case. For our purposes, assume the facts are as stated in the title: DUI on private property, while riding / operating a ORV.
The charged with DUI is found RCW 46.61.502. In addition, there are two concurrent statues in the State of Washington dealing with individuals driving / operating an off-road vehicle while under the influence of intoxicating liquor.
As a result, where a special statute punishes conduct that is punished under a general statute the special statute applies and the accused can be legally charged only under that specific statute. In the case of State v. Williams, 62 Wash.App. 748, 815 P.2d 825 (1991). the Washington Supreme Court recognized this rule has a longstanding tradition in Washington, as the Court wrote that:
[Previously], we stated: “The rule is that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general. Furthermore, the threshold question is whether the two statutes proscribe the same conduct.
In our case, the general statute is the DUI charge under RCW 46.61.502 (a gross misdemeanor) and the specific statute is the Operation of a Off-Road Vehicle While Under The Influence RCW 46.09.120(2) (a misdemeanor). To further determine this, RCW 46.04.370 defines an “Operator or Driver as “every person who drives or is in actual physical control of a vehicle. And more specifically, RCW 46.09.020(14) reads “Operator” means each person who operates, or is in physical control of, any non-highway vehicle.
Both RCW 46.61.502 AND 46.09.120 offenses have identical language stating that it is unlawful for any person to drive while under the influence of intoxicating liquor. See RCW 46.61.502(b) and RCW 46.09.120(2).
Given that RCW 46.61.502 references the general term of “motor vehicle” and a off-road vehicle [ORV] is included in the general definition of “vehicle” and “motor vehicle” under RCW 46.04.670, RCW 46.04.320 and RCW 46.09.020 respectively there is no question that the general statute covers the ORV.
Furthermore, in Washington caselaw, the state Toxicologist concluded that there was an abundance of scientific support to indicate that with an alcohol level of 0.10%, all persons are significantly affected and under the influence of alcohol, and any person who drives a vehicle with a blood alcohol content that is .10 or greater within two hours after driving poses an unreasonable risk to the safety of the public. In July 1998, the National Highway Traffic Safety Commission published “Effects ofLow Doses of Alcohol and Driving Related Skills: A Review of the Evidence.” This study concluded that evidence of impairment at alcohol concentrations of .05 and higher with respect to reaction time, tracking, concentrated attention, divided attention, information processing,, vision, perception, psychomotor performance and on various driver performance measures. This study concluded that no “safe” limit of alcohol level other than zero can be placed in alcohol impairment of driving related skills.
Similarly, in April 2000, the National Traffic Highway Safety Administration published findings that concluded that a majority of studies reported significant alcohol impairment at 0.05. At 0.08 more than 94% of the studies reviewed reported that individuals exhibited impairment of driving skills.
As a result of this research, RCW 46.61.506(1) allows for an alcohol level less than .08 to be considered as competent evidence to consider that a person is under the influence of alcohol. Based upon the above literature, cases and statutes, it is obvious that the prosecution can proceed with a case against a citizen for operation of a ORV, and the charge of DUI is tectonically on point, but the theory of Equal Protection demands that a ORV Alcohol charge should happen under the specific statute of RCW 46.09.120(2) which states: ” It is a misdemeanor for any person to operate any nonhighway vehicle while under the influence of intoxicating liquor or a controlled substance.
This is the specific and special statute for off-road vehicles. While it does also result in violation of the general statute of RCW 46.61.502(1)(b) [the general statute dealing with driving under the influence of a motor vehicle], the law holds that if the more general statute of DUI is charged and pursued, rather than the more specific statute, the person’s equal protection rights are violated.Specifically, the Washington Appellant Court found that “It is a violation of equal protection for a prosecutor to be given discretion to charge a defendant with a felony or misdemeanor based upon identical conduct;” (See State v. Martell, 22 Wash.App. 415, 591 P.2d 789 (1979).
Therefore, the prosecutor has a basis for distinguishing between persons who can be charged under one or the other statute, and is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute.
Under the law, and strictly speaking, where a person is arrested for a DUI when the facts show operation of private property, the prosecutor has no choice in this matter and MUST file a charge under the more specific statute.
The fact that a person is on private property is also not the issue, because the DUI statute criminalize DUI or ORV under the influence charges “anywhere in the state.” There still remains the question of how the police lawfully entered the private property, but assuming they were lawfully there, and had a lawful basis to contact the vehicle operator, the proper legal charge is the specific ORV under the influence charge.
This is a significant point because there are vast and huge difference between the two charges in terms of sentencing and collateral consequences. A DUI ha s a mandatory jail sentence, fine, license suspension, CDL consequences, Ignition Interlock requirements, probation, and more. The crime of ORV has none of these mandatory components upon a conviction. Therefore, a person unaware of this special requirement may believe they have no options, and without proper legal counsel and strategy face sever consequences of a DUI that are in fact improper and illegal.