Like most experienced Rochester DWI lawyers, we have seen drivers arrested for drinking and driving under a variety of circumstances.

While New York’s DWI laws can be quite broad regarding where an arrest may be made, there are circumstances under which a driver’s rights not to be subject to illegal search and seizure by law enforcement may limit the ability of law enforcement to make an arrest on private property.

The mere fact that the driver is on privately owned property and not a public highway, however, is not an absolute bar to the police conducting an investigation for drinking and driving and arresting a driver.

New York’s DWI laws specifically apply not just to public highways, but also to private roads that are open to motor vehicle traffic and parking lots for four or more vehicles.

As a result, a driver is subject to arrest on many private roads, such as access roads leading to and from a shopping mall or an apartment building – even if these roads are technically the private property of the landowner.

The primary issue regarding whether an arrest may be legally made for drinking and driving on a private road is whether that road is open to motor vehicle traffic, which most access roads for stores or apartment buildings unquestionably are.

New York law does, however, specifically exempt any areas of private property that are attached to a one or two family residence from its drinking and driving laws.

As a result, while it is not recommended as a safe or prudent course of action, a driver cannot be arrested for DWI if only driving on the property surrounding his or her private residence – or even at a friend’s home – so long as the vehicle never leaves the private property.

Anyone arrested for drinking and driving should seek the help of an experienced lawyer who will examine all of the circumstances surrounding the arrest.

Call us at 585-484-7432 for a legal consultation.