The Nebraska Supreme Court has reversed the conviction of a Lincoln man who was found guilty at trial of driving under the influence, refusing to submit to a chemical test and possessing an open container.
Where Jeffrey McCave's DUI case differed from the norm is that Lincoln police did not arrest him after a traffic stop or a crash.
According to the Supreme Court decision, he was sitting in a car parked in a residential driveway and its motor was not running.
McCave was outside his father's home early on Sept. 8, 2007, and the two had had a heated argument that led his father to call police and tell them his son had left the house earlier and come home drunk, according to the Supreme Court decision.
One of the two officers to respond to the call testified at McCave's trial in Lancaster County Court that he found McCave sitting in the driver's seat of the car, which was "straddling" a city sidewalk.
Police initially arrested McCave on suspicion of trespassing, and he was later convicted on that count as well. Shortly after his arrest, police told McCave he was being arrested for drunken driving too. McCave refused to submit to a breath test, saying he had not been driving.
The officer testified he saw a beer can in the car and that while the motor was not on, a key was in the ignition. The officer testified that he told McCave to step out of the car after McCave said he was leaving and motioned to turn the key, and McCave got out of the car.
McCave's attorney, Sarah Newell, appealed his conviction on the three alcohol-related charges to Lancaster County District Court, where Judge John Colborn sided with the outcome from the county court trial.
The Nebraska Supreme Court did not.
"We do not believe the Legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk," Justice William Connoly wrote in the 38-page ruling.
"The county court concluded that because McCave had stated that he was leaving while he was in his vehicle with the keys in the ignition and the motor off, the officers could infer that McCave drove to (his father's and stepmother's) house intoxicated. We disagree."
McCave had been sentenced to 30 days in jail, two years' probation and a $1,000 fine for DUI and refusing to submit convictions. He also was banned from operating a motor vehicle as part of his probation.
Newell said the ruling in her client's favor represented a basic interpretation of the laws on the books, rather than a fundamental shift in DUI law.
"It's nice to know you're barking up the right tree," she said.
http://alcoholism.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=alcoholism&cdn=health&tm=20&gps=335_488_1308_560&f=00&tt=2&bt=0&bts=0&zu=http%3A//journalstar.com/news/local/crime-and-courts/article_a4e34b00-29e6-58fa-84f6-95df21039111.html
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