The Law

Can’t Sober Up Here – Even At Midnight by Ron Davis Does the law permit a drunken driver to sleep it off in the parking lot of a privately owned shopping center? A recent court case in Massachusetts provides an answer to that question. Details of that case show that late one mid-December evening in North Andover a local police patrolman pulled into the parking lot of North Andover Shopping Mall on a routine check. While making the rounds of the property, he spotted what appeared to be an abandoned car in the parking lot. Because the stores at the shopping center were all closed, the patrolman stopped to inspect the car. Inside, he found the driver asleep. The patrolman woke the sleeping driver and began questioning him. Suspecting that the driver was intoxicated, the patrolman administered sobriety tests, all of which the driver failed. The patrolman then arrested the man for operating a motor vehicle while under the influence of alcohol. The driver argued that because the stores at the shopping center were closed, he was not in any way interfering with the operations there. Moreover, he added, a person should not be punished for driving a motor vehicle while under the influence of alcohol if, once the driver feels the effect of alcohol, he or she removes the vehicle from the roadway. (In legal terms, that argument is known as the “shelter defense” and is recognized in Arizona and a few other jurisdictions in the nation.) Evidence showed, however, that although all the stores at the shopping center were closed, it included an automated teller machine, several pay telephones, and newspaper distribution boxes. Because of those services offered on a 24-hour basis, a Massachusetts court ruled that the parking lot at the shopping center was a place to which the public always had access as invitees or licensees. Therefore, the judge added, the driver was guilty of the criminalized operation a motor vehicle in a place or way “to which the public has a right of access.” The judge also rejected the shelter defense, explaining, “A better policy is for a person who drinks alcohol to anticipate and ascertain his or her ability to operate a motor vehicle before attempting to do so.” (Commonwealth of Massachusetts v. Kiss, 794 N.E.2d 1281) Decision: September 2003 Published: November 2003