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OWI – Property “Held Out to the Public”

County of Winnebago v. Matthew J. Miller, 2011AP661, District 2, 8/17/11

court of appeals decision (1-judge, not for publication); for Miller: Walter Arthur Piel, Jr.; case activity

Experimental Aircraft Association Air Venture grounds were sufficiently “held out to the public,”¬†for purposes of OWI-related liability,¬†because the EAA granted substantial access to the public via purchased passes.

¶7        The analysis in Tecza is most analogous to this case.  In Tecza, we held that roads in a private gated community were within the jurisdiction of OWI laws.  Id., ¶22.  We found that while the roads were restricted by security stations, all that was necessary for entrance was to stop at the security station and obtain a pass.  Id., ¶¶20-22.  Thus, the roads were held open to the public because nonresidents were freely and regularly admitted.  Id., ¶¶19-20.  We also noted that permitting police presence in an area indicates an explicit intent to hold the roadways out to the public.  Id., ¶21.

¬∂8¬†¬†¬†¬†¬†¬†¬†¬†Miller argues that since passes to the EAA could not be purchased at the time of his arrest, the grounds were not held out to the public.¬†¬†However, the evidence shows that the EAA explicitly intends the complex be held open to the public and contemplates the public driving there.¬†¬†While the campground and Warbirds area are restricted by a controlled gate, anyone who is camping or purchases parking permission is allowed to drive on the EAA complex at any time, including the time of Miller‚Äôs arrest.¬†¬†Additionally, vendors, security and thousands of people constituting ‚Äúa mini city‚ÄĚ have driving access at the complex.¬†¬†Also, like¬†Tecza, the EAA uses police presence, presumably for security and safety purposes.¬†¬†When all is said and done, Miller‚Äôs argument boils down to the claim that, because passes must be purchased, access is therefore limited and the greater public is not allowed to drive on the premises, therefore making it a private way.¬†¬†But the mere fact that passes must be purchased does not differentiate the EAA‚Äôs roads from the gated community in¬†Tecza.¬†¬†The fact that anyone can purchase a pass‚ÄĒnot just employees, not just owners of airplanes, not just members of the EAA‚ÄĒis an important indicator that the public at large may have access.¬†¬†There is no exclusivity present here.

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