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When an arrest is on an inapplicable roadway

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Photo from website of U.S. District Court (W.D. Mi.).

In driving-related prosecutions, an initial critical question is whether the driving was on a roadway that even applies to the criminal statute involved. The analysis starts with the text of the applicable criminal statute (e.g., driving while suspended statutes on this issue may be more beneficial — or not — to defendants than drunk driving statutes) and proceeds to court interpretations of the statute. Even for an offense as relatively minor as suspended driving, this issue is important beyond any risk of a suspended driving conviction, to include the risk of more criminal charges following if, for instance, the police then conduct an inventory search of the car (suspended drivers are not permitted to drive their cars away from the police) and find a stash of drugs.

For instance, under Virginia law, no suspended driving crime is committed to drive on federal government facility roadway having signs barring entry. U.S. v. Smith, 395 F.3d 516 (4th Cir. 2005) (interpreting Virginia’s suspended driving law). However, the opposite outcome occurs where "signs simply alert drivers that they must register at the gate and produce identification. If they are not on the restricted list, then they will be allowed to continue to travel." United States v. Spencer, 422 F. Supp. 2d 589, 592 (E.D. Va. 2005) (distinguishing the foregoing U.S. v. Smith decision).

In Maryland, suspended driving only takes place on roadways "used by the public." On February 20, 2008, Maryland’s highest court reversed intermediate court precedents by deciding that driving while suspended "does not require the unrestricted right of the public to the use of the highway or private property in order to render the highway or private property subject to the requirements" of the suspended driving statute. U.S. v. Ambrose, ___ Md. ___ (Feb. 20, 2008) (decided on a question certified from a federal court). The Court determined the need for a factual inquiry "regarding the nature and extent of the use of the thoroughfare, roadway or property by the public. Whether the public’s access to or use of the thoroughfare or roadway is restricted in any way by the owner is of no consideration to this inquiry." Id.

Consequently, were the foregoing U.S. v. Smith case decided using Maryland law, signs barring entry would not have been enough, by themselves, to prevent a suspended driving conviction. Jon Katz.