In order to be convicted of DWI in North Carolina one of the elements that the government must prove is that the accused was driving on “any highway, any street, or any public vehicular area within this State.” N.C. Gen. Stat. § 20-138.1 The portion which states the driving must take on a highway or street is rather straightforward. However the last portion the driving may occur on any public vehicular area which raises the question of what exactly is that?
The question was raised in State v. Mark in which a defendant argued the State failed to prove he was driving on a public vehicular area. State v. Mark, 154 N.C. App. 341 (2002). The incident in this case occurred in Greensboro, NC. The defendant was operating on vehicle on Florida Street which is near Highway 29. The court found that the evidence showed that the street was near Highway 29 and Florida Street was twice the normal width of a normal street out in the county. The majority of the court concluded based on this evidence when viewed in the light most favorable to the State a reasonable inference could be made that Florida Street is to be considered a public street.
In light of this holding it appears that as long as an inference can be made a street is open to public use it can be so classified. The factors considered in this case were 1.) The name of the street, 2.) Location of the street, and 3.) The size of the road. If these factors are present then an area may be considered a public vehicular area. The dissent in this case would conclude to the contrary noting that the evidence presented (evidence of name a name, general location, and size of road) only served to raise a “mere suspicion” and not enough to reasonably conclude that Florida Street was a public street.
