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OWI — Gated Community Roadway, Open to Public Use, Support for Drunk Driving under § 346.61

State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08
For Tecza: Timothy P. Swatek

Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61.


¶18      … We read Phillips as inquiring into whether the premises were available for use to the public or “to a defined limited portion of the citizenry.”Richling, 178 Wis. 2d at 859-60. With this focus on the public, we wrote:

   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.

Id. at 860. Using this test, we distinguished Richling from Phillips by pointing out that in the latter, American Motor employees were a “defined, limited portion of the citizenry.” Id. at 860-61.¶19      Considering the facts of this case in light of the Richling test, we conclude that the roadways of the Community were held out for use of the public as a whole. The undisputed evidence establishes that any person with a driver’s license and access to a motor vehicle was permitted to use the Community’s roads; on a daily basis postal employees, cable television employees, contractors, food service employees, repairpersons, and newspaper delivery persons were granted access to the Community. In addition, members of the general public were given access to the Community’s roadways to show and view houses for sale, watch fireworks, play golf, attend weddings, and to just look around.

¶22      We affirm. The roadways of the Geneva National Community were “held out to the public for use of their motor vehicles” because on any given day any licensed driver could enter the Community unchallenged; therefore, the drunken driving law of the State applies as provided in Wis. Stat. § 346.61.


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