When people think of a OWI charge they think of
drinking and driving. They do not think about being in a parked car,
not going anywhere. Especially one in a parking lot. Could a person be
cited for OWI if intoxicated in one of these vehicles?
This breaks down into two separate questions. The first is do you
have to be driving? The second is can you be charged if you are on
private property in a parking lot?
Parked along a street or highway
Section 346.63 of the Wisconsin Statutes prohibits operating
a motor vehicle while under the influence of an intoxicant on a highway.
Our jury instructions tells a jury that "operate means the
physical manipulation of any of the controls of a motor vehicle to put
it in motion."
So, if the key is in the ignition, especially if it is turned on,
someone is operating it.
Also, the police do not have to see you driving to prove that you
drove or operated. They will ask you and if you tell them you drove, you
just provided proof. If they say you told them you drove, even if you
did not tell them this, they have evidence which, if believed, proves
that you drove. (See
talking to the police.) If they have evidence that your car
was recently moved, they have evidence. They do not have to see it to
"Operating" may be proved by circumstantial evidence — the presence
vehicle at the gas station, the person's presence behind the wheel, his
questioning, the unlikelihood of the passenger's ability to operate due
to his incoherent
condition and the absence of any evidence the passenger was the driver.
State v. Merles.
2008 WI App 179,117, 315 Wis.2d 756, 762 N.W.2d 813.
However, mere presence is not operation. They do have to prove that
you were the one operating! In Village of Cross Plains v. Haanstad.
2006 WI 16, Tf23,288 Wis.2d 579, 709 N.W.2d 447, the court concluded
that the defendant did not "operate" a vehicle where"... Haanstad was
merely sitting in the driver's seat of a parked vehicle. Although the
engine was running, the uncontested evidence shows that Haanstad was not
the person who left the engine running. She never physically manipulated
or activated the controls necessary to put the vehicle in motion." (She
had evidence that someone else had started the car, she was just sitting
But is along the side of the road or off the road "on a highway?"
"Highway" is defined by sec. 340.01(22): "'Highway' means all public
ways and thoroughfares and bridges on the same.
It includes the entire width between the boundary lines of every way
open to the use
of the public as a matter of right for the purposes of vehicular travel.
those roads or driveways in the state, county or municipal parks and in
which have been opened to the use of the public for the purpose of
and roads or driveways upon the grounds of public schools, as defined in
s.115.01(1), and institutions under the jurisdiction of the county board
but does not include private roads or driveways as defined in sub.
I was on a private road. So am I OK?
Section 346.0 l(lm) added "In this chapter, in addition to the
meaning given in s. 340.01(22), 'highway' includes a private road or
driveway that is subject to an agreement for traffic
regulation enforcement under s. 349.03(5)."
Well, I was in a parking lot! Surely that isn't illegal.
"Most provisions of this chapter are applicable only upon highways.
This section gives the sections relating to reckless and drunken driving
somewhat broader applicability. They will apply in such areas as parking
lots, filling stations and loading platforms." 1957 Legislative Council
In Citv of LaCrosse v. Richling. 178 Wis.2d 856, 505 N.W.2d
448 (Ct. App. 1993), the
court held that the parking lot of a bar and restaurant was "held out to
the public" because
potential customers are part of "the public." "We believe the
appropriate test is whether, on
any given day, potentially any resident of the community with a driver's
license and access
to a motor vehicle could use the parking lot in an authorized manner."
178 Wis.2d 856, 860.
The Richling test was applied in State v. Carter. 229
Wis.2d 200,598 N.W.2d 619 (Ct. App. 1999), to hold that a parking lot of
a closed gas station was also "held out to the public." [WI Crim
Jury Instruction 2600]
How about the private parking lot of my own apartment or a friend's
Bad news there, as well. Wisconsin, for purposes of enforcing the
drunk driving and reckless driving laws has defined a highway to
include a private parking lot of any apartment building with four or
So, you cannot sit in your car in your own parking spot, and
listen to the radio while you are under the influence. For that
matter, you probably will get in trouble if you are under the car
changing the oil, if the key is in the ignition and the radio
Conclusion - You can get a DUI for being parked in your own parking
place, or in someone else's parking lot, even a private lot, much less
for being parked on the street.
And... you will be convicted unless you have a good lawyer. That
you were in a parked car with no driving after you had been
drinking, or even while completely intoxicated does not mean that
you violated this law. It certainly doesn't mean that the government
can prove that they violated this law.
However, I like to drink Ginger Beer. It is a non-alcoholic
beverage that comes in brown bottles. It is legal for me to drink it
while I am driving. That it is legal does not mean it is a good
idea, unless you like having long conversations with young police
officers, and enjoy doing stupid
people tricks by the side of the road. Drinking that Ginger Beer
while driving will give the police an excuse to cause me problems. I
don't care to do that.
Warning - Use at your own risk.
The laws in every state are different, and the laws in
Wisconsin are constantly changing. While the information on this page is
current as of September, 2012 in Wisconsin, it may not be accurate at a later
date or in a different state.
This page is not intended to be legal advice or substitute for legal
advice. It is intended to provide general information. Legal advice can only be
given with a full understanding of the actual facts of a case, generally in
a face-to-face consultation. Note that there are exceptions to many of the
statements made here. No one should act or refrain from acting in court
based on anything stated in this web page. My office does not give legal
advice to non-clients over the phone or on the internet.
law and procedures in drunk driving cases are changing rapidly. This page
reflects law in place in Wisconsin, on July 31, 2012.
DUI / OWI Wisconsin
- How this office approaches DUI / OWI cases. The need for an assessment and
/ or treatment along with competent legal assistance is discussed.
DUI / OWI Treatment Court - an option that must be considered in Dane
County for some third-offense cases
DUI / OWI / Drunk Driving Court in Madison, Dane
County, Wisconsin - procedure
DUI / OWI Field Sobriety Tests in
Wisconsin - A look at what "field sobriety tests" are - and are not - in
DUI / OWI (Drunk Driving) Wisconsin Ten
Day Warning - Why a defendant needs to take action before the court
process even gets going.
DUI / OWI / Drunk Driving Training of Attorney
Charles Kenyon in Madison, Dane County, Wisconsin - some of the
advanced training in drunk driving defense take by Attorney Charles
DUI / OWI / Drunk Driving Math in Wisconsin - What Counts as a prior
Wisconsin Judicial Sentencing Guidelines for OWI / DUI / Drunk Driving
cases by County. Each judicial district has different guidelines.
Answers to DUI / OWI Questions - Legal Questions -
Madison Wisconsin Lawyer
This page last revised:
27 Apr 2022 05:33:34 -0400
Kyle Kenyon - When Experience Matters
Zoom Court Appearance Information
Attorney at Law
5555 Odana Road, Suite
Madison, WI 53719-1280
Telephone (608) 308-9645
Former (Elected) District Attorney
Former Assistant State Public Defender
Extensive jury trial experience in cases
ranging from traffic to sexual assault / homicide
criminal cases since 1979
Appeals in Wisconsin Court of Appeals and
University of Wisconsin Law School
1978 - winner of Abe Sigman prizeCovid19PlanForReopening2022-03.pdf
University of Wisconsin - Madison -
Psychology - 1975
Trainer / presenter / panelist for
National College of District Attorneys,
Department of Justice,
Wisconsin Public Defender
Certified to administer roadside
Field Sobriety Tests in Wisconsin
Graduate Vehicular Homicide / DWI Program, Northwestern
University Center for Public Safety
Past-President: Marinette County Bar
Association, Door-Kewaunee Bar Association
of Criminal Defense Lawyers (NACDL)
Wisconsin Association of Criminal Defense Lawyers (WACDL)
Member: National College for DUI Defense
Member: State Bar of Wisconsin, Dane County Bar
Admitted to practice: State of Wisconsin, Federal - Eastern
District of Wisconsin, Western District of Wisconsin, 7th Circuit Court of
Drunk Driving Lawyer
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