Traffic Violations on Private Property?
In South Carolina, the majority of driving statutes are contained in Title 56. This section of the code contains the rules and regulations for driving on roads in this state. A question that often arises is can someone be charged criminally for how they drive on private property? This raises multiple questions: what was the act? what type of private property? And many more.
Most traffic violations are considered criminal charges. Criminal charges may require criminal intent or be classified as strict liability. Criminal intent (mens rea) has different levels:
The required mens rea for a particular crime can be classified into a hierarchy of culpable states of mind in descending order of culpability, as purpose, knowledge, recklessness, and negligence. State v. Jefferies, 316 S.C. 13, 18, 446 S.E.2d 427, 430 (1994)
If the crime is strict liability, then all that is required for the state to prove is that the person committed the act, regardless of their state of mind.
The question for traffic violations is what intent, if any, is required? There are hundreds of traffic violations that a person can commit, and each violation must stand on its own language and interpretation.
In offenses at common law, and under statutes which do not disclose a contrary legislative purpose, to constitute a crime, the act must be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as is regarded by the law as equivalent to a criminal intent.
'Of course, the legislature, if it so chooses, may make an act or omission a crime regardless of fault.' State v. Mimms, No. 2014-UP-489, 2014 WL 7898503, at *3 (S.C. Ct. App. July 30, 2014) (citation omitted).
Even if the criminal statute is silent as to intent, a court can look into the history and context of the crime to determine if the legislature intended for the crime to be strict liability or carry an intent requirement:
Therefore, whether knowledge and intent are necessary elements of a statutory crime must be determined from the language of the statute, construed in the light of its purpose and design. Guinyard v. State, 260 S.C. 220, 227, 195 S.E.2d 392, 395 (1973).
We note our supreme court has incorporated a mental state into criminal statutes lacking any requirement of intent, knowledge, recklessness, or negligence. Mimms at 5.
The S.C. Court of Appeals has held that DUI is a strict liability crime based on the legislative intent and context.
We find that under our DUI statute, there is a clear legislative purpose for imposing strict liability and public policy favors strict liability. Id.
Does it matter where the traffic violation occurred? That is going to depend on the offense. According to a 2012 AG Opinion, the difference between public/private road only matters if the language of the offense statute requires it to matter:
We reiterate today, however, that “the question of whether specific property is public or private is ... irrelevant as to certain traffic offenses.” See Ops. S.C. Atty. Gen., February 22, 2005; October 2, 1985. In an opinion dated August 14, 1992, we stated that “[w]e have determined that Section 23-1-15 would have no effect on a traffic offense in which the commission on public property is not an element, such that certain traffic offenses may be committed and are enforceable on private property regardless of whether the property is posted.” See Ops. S.C. Atty. Gen., May 21, 1980; September 29, 1975. For example, the offense of driving under the influence may be committed on private property even though it is not posted, because operation of a motor vehicle on a public highway is not a required element of the offense. See Ops. S.C. Atty. Gen., October 15, 2004; April 22, 1985. As set forth in State v. Allen, 314 S.C. 539, 431 S.E.2d 563, 564 (1993), “... Section 56-5-2930 by its terms is not limited to public highways but applies anywhere within our State boundaries.” See also Ops. S.C. Atty. Gen., January 18, 1988 [the offense of reckless homicide may be committed on private property]; December 23, 1974 [the offense of reckless driving applies to private property]; May 21, 1980 [a violation of the handicapped parking provision may occur on private property which is not posted because presence on a public highway is not an element of the offense]. Therefore, as to any offense where the language of the statute setting forth the offense does not require that the offense be committed on a public highway or street, posting of the private property would not be necessary for the commission and enforcement of the act.
2012 WL 1036298, at *2 (S.C.A.G. Mar. 21, 2012)
But what about 56-5-6310: Application of Chapter Upon Owner's Consent. This statute explains how to make traffic regulations apply to private property:
The provisions of Chapters 1, 3, 5, 7, 9, and 10 of Title 56 shall be applicable to private roads if the owner, including any corporation or homeowners' association holding title to community roads and excluding those only holding easements over such roads, shall file a written consent stating that the undersigned is the owner of the private roads shown on an attached plat and consents to the application of the provisions of this chapter for purposes of highway safety on such private roads. S.C. Code Ann. § 56-5-6310.
Our Supreme Court has held that this provision is not a requirement for all traffic offenses to apply to private property, but rather the opposite. It is a method to enable private property owners to have traffic regulations apply to their private property that would otherwise not.
This statute does not provide, as appellant contends, that the UART is applicable to private roads only upon the owner's consent; rather it simply provides a method by which provisions of the UART which are not automatically applicable may be made applicable to private roads. State v. Allen, 314 S.C. 539, 541, 431 S.E.2d 563, 564 (1993)
Traffic offenses are usually criminal and may require either criminal intent or be strict liability. This depends on the specific text of the statute as well as legislative intent.
The AG's opinion above finds that unless the traffic offense has "public property" as an element/requirement, then traffic offenses can be enforced throughout the state regardless of where the offense occurred. If the traffic offense has a "public property" element/requirement and the offense occurred on private property, then the state would need to prove that the owners of the private property complied with 56-5-6310 or 23-1-15 (parking lots). The Supreme Court in Allen did not go as far as including 23-1-15 in this analysis.