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OWI – Operating in Parking Lot: “Held Out to the Public for Use,” § 346.61

State v. Heidi L. Fleischmann, 2011AP2558-CR, District 3, 3/20/12

court of appeals decision (1-judge, not for publication); for Fleischmann: Sarvan Singh; case activity

The State satisfied its burden of proving that Fleischmann operation of a motor vehicle, in a parking lot adjacent to an empty business building, was on “premises held out to the public for use of their motor vehicles,” § 346.61.

¶8        Whether a premises is held out to the public depends on the owner’s intent.  City of Kenosha v. Phillips, 142 Wis. 2d 549, 554, 419 N.W.2d 236 (1988).  The State can prove an area is held out to the public “by action or inaction that would make the intent explicit or implicit.”  Id. at 558.  In City of La Crosse v. Richling, 178 Wis. 2d 856, 860, 505 N.W.2d 448 (Ct. App. 1993), we determined the appropriate test is whether “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.”

¶10     … We agree that the State bears the burden of proving the parking lot is held out to the public. …

¶11      However, applying the Richling test to the facts of this case, we conclude there was sufficient evidence to show the parking lot was held out to the public.  The parking lot is a business lot that is located off a public road and is easily accessible to the public.  The lot was most recently used by a business.  After the business vacated the property, the county, as owner of the lot, did nothing to prevent the public from using its lot.  There are no signs or barriers prohibiting the public from entering, passing through, or parking in the lot.  Similar to the circuit court, we conclude these findings support the conclusion that the county’s inaction shows it implicitly intended the lot to be held out to the public.  See Phillips, 142 Wis. 2d at 558.

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