Cox v. Director of Revenue

DUANE BENTON, Judge.

The circuit court ruled that the Director of Revenue improperly suspended the driving privileges of Steven R. Gox. The Director appeals. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const, art. V, sect. 10. Reversed and remanded.

On Saturday, August 15, 1998, at 10:20 p.m., a police officer discovered Cox sleeping or unconscious, sitting in the driver’s seat behind the wheel of a vehicle, in the parking lot of a gas station. Cox was the only person in or around the vehicle. The keys were in the ignition, and the motor was running. Seeing the shift lever in “park,” the officer knocked on the window.

Awaking, Cox lowered the window. He had a strong odor of an intoxicating beverage on his breath. His eyes were very bloodshot and watery, and he appeared disoriented. The officer noticed a glass of brown liquid between his legs. At the officer’s request, Cox turned off the ignition, exited the vehicle, and tried but failed sobriety tests. The officer arrested him for driving while intoxicated. After Miranda warnings, Cox answered “Yes” to the form question, “Were you operating the vehicle?”. A subsequent breath test revealed a blood alcohol content of .18 of one percent.

The Director suspended Cox’s driving privileges pursuant to section 302.505, RSMo Supp.1997. 1 Cox requested a trial de novo in circuit court. The parties stipulated to admission of the Director’s records — including the police reports — subject to Cox’s objection that they did not show probable cause for the arrest. At the circuit court, Cox argued that the officer did not observe him “operating” or “driving” the vehicle.

*550 Under section 302.505, the Director shall suspend a driver’s license if the arresting officer had probable cause to believe the person was driving a vehicle with a blood alcohol concentration of at least ten hundredths (.10) of one percent. See Riche v. Director of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999).

The term “driving” in section 302.505 is defined in section 577.001.1. Dalton v. McNeill, 713 S.W.2d 26, 28-29 (Mo.App.1986). The meaning of driving is “physically driving or operating a motor vehicle.” Section 577.001.1.

Until 1996, the statutory definition was “physically driving or operating or being in actual physical control of a motor vehicle.” Section 577.001.1 RSMo 1991. In 1996, the General Assembly removed the phrase “or being in actual physical control of.” 1996 Mo. Laws 593 , 617. When the legislature amends a statute, that amendment is presumed to change the existing law. Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998). By removing “actual physical control” from the statute, the legislature narrowed its scope. A person is not subject to section 302.505 by simply being in actual physical control of a vehicle while intoxicated. See Weiland v. Director of Revenue, 32 S.W.3d 628, 631 (Mo.App. banc 2000); Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo.App.1998). The legislature meant to negate the effect of this Court’s holding that “actual physical control” occurs when:

even though the machine merely stands motionless, ... a person keeps the vehicle in restraint or [is] in a position to regulate its movements.

State v. O’Toole, 673 S.W.2d 25, 27 (Mo. banc 1984), adopting the definition from Kansas City v. Troutner, 544 S.W.2d 295, 300 (Mo.App.1976).

The legislature’s re-enactment of the terms “driving” and “operating” in section 577.001 emphasizes that both words have distinct meanings. See Missouri Property & Cas. Ins. Guar. Co. v. Pott Industries, 971 S.W.2d 302, 305 (Mo. banc 1998). These words are not further defined in chapters 302 or 577. This Court ascertains the legislature’s intent by considering the plain and ordinary meaning of the words in the statute. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). Absent a definition in the statute, the plain and ordinary meaning is derived from the dictionary. Ste. Genevieve School District R-II v. Board of Aldermen of City of St. Genevieve, 66 S.W.3d 6, 11 (Mo. banc 2002).

The dictionary defines drive as “to guide a vehicle along or through.” Webster’s Third New International Dictionary 692 (1993). In this case, Cox was not drhdng the vehicle, which was motionless. He did not guide it along or through anything.

The dictionary defines operate as “to cause to function usually by direct personal effort: work (~ a car).” Id. at 1581. Cox meets the bright-line test to operate a car, as he caused its motor to function. Once the key is in the ignition, and the engine is running, an officer may have probable cause to believe that the person sitting behind the steering wheel is operating the vehicle. Stewart v. Director of Revenue, 702 S.W.2d 472, 475-76 (Mo. banc 1986); State v. Mitchell, 77 S.W.3d 637, 640 (Mo.App.2002); Mayberry v. Director of Revenue, 983 S.W.2d 628, 632 (Mo.App.1999). This is true even if that person is sleeping or unconscious. State v. Wiles, 26 S.W.3d 436, 441 (Mo.App.2000); Delzell v. Lohman, 983 S.W.2d 633, 634-35 (Mo.App.1999); Weiland v. Director of Revenue, 73 S.W.3d 60, 63 (Mo.App.2002).

In this case, the key was in the ignition, the engine was running, and Cox was sit *551 ting behind the steering wheel. Based on these stipulated facts, the officer had probable cause to believe that Cox was operating the vehicle. See Hinnah v. Director of Revenue, 77 S.W.3d 616, 621 (Mo. banc 2002). As no other issues were contested, the Director properly suspended Cox’s license. Id. at 620 . The circuit court erroneously declared and applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

To the extent that State v. Cross, 34 S.W.3d 175 [3], [5], [8] (Mo.App.2000), and Hoyt v. Director of Revenue, 37 S.W.3d 356 [5] (Mo.App.2000), hold that the act of turning off the ignition is “operating,” they are overruled as that act causes a car not to function. In addition, cases interpreting the pre 1996 law should not be relied upon to define “operating” because they do not separately define that term. See, e.g., State v. Hughes, 978 S.W.2d 24, 26 (Mo.App.1998); Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo.App.1998); State v. Hoyt, 922 S.W.2d 443, 447-48 (Mo.App.1996); Gleason v. Director of Revenue, 859 S.W.2d 189, 190-91 (Mo.App.1993); Wilcox v. Director of Revenue, 842 S.W.2d 240, 242-43 (Mo.App.1992); Stoltz v. Director of Revenue, 816 S.W.2d 711, 714 (Mo.App.1991); State v. Hollis, 800 S.W.2d 69, 71 (Mo.App.1990); State v. Dey, 798 S.W.2d 210, 212 (Mo.App.1990); State v. Block, 798 S.W.2d 213, 216 (Mo.App.1990); State v. Nickerson, 763 S.W.2d 716, 717 (Mo.App.1989); State v. Hoeber, 737 S.W.2d 484, 486 (Mo.App.1987); Taylor v. McNeill, 714 S.W.2d 947, 948 (Mo.App.1986); State v. Liebhart, 707 S.W.2d 427, 429-30 (Mo.App.1986).

The judgment is reversed, and the case remanded.

LIMBAUGH, C.J., STITH and PRICE, JJ., concur.

WHITE, J., dissents in separate opinion filed.

WOLFF and TEITELMAN, JJ., concur in opinion of WHITE, J. WOLFF, J., dissents in separate opinion filed.

. All statutory references are to RSMo Supp. 1997, unless otherwise indicated.