holding that although “actual physical control” used to be included as a means of committing driving while intoxicated in Missouri, the legislature has removed this phrase from the DWI statute, leaving only “driving” and “operating” as ways to commit the offense
How later courts described this case
- holding that although “actual physical control” used to be included as a means of committing driving while intoxicated in Missouri, the legislature has removed this phrase from the DWI statute, leaving only “driving” and “operating” as ways to commit the offense
- concluding that driver’s license was appropriately suspended for operating a vehicle where an individual was sitting behind the steering wheel in a parking lot with the key in the ignition and with the engine running
- holding that police had probable cause to believe that defendant was operating his vehicle where defendant was found sleeping in the driver’s seat of his car with the key in the ignition and the engine running
- holding that "cases interpreting the pre 1996 law[, such as Block and Liebhart,] should not be relied upon to define ‘operating’ because they do not separately define that term”
Written by the judges who cited it.
Distinguished
Distinguished by State v. Chambers, 2006 Mo. App. LEXIS 1554 (2006)
Id. The present case is distinguishable from Cox in that even though Appellant was found slumped over the steering wheel of his vehicle with the keys in the ignition, both witnesses testified that they never observed the engine running.
The opinion
RONNIE L. WHITE, Judge,
dissenting.
I respectfully dissent.
The record establishes that Respondent was sitting asleep in a parked car in a parking lot, that he had been drinking alcohol and was intoxicated while in the parked car, and that the car’s engine was running with its gear set in park.
As detailed by the majority, the question here is whether those actions amount to “driving,” 1 defined as “physically driving or operating a motor vehicle.” 2 Answering that question requires consideration of the prior version of the statute that, until 1996, carried a more expansive definition of “driving,” to wit: “physically driving or operating or being in actual physical control of a motor vehicle.” No doubt, as noted by the majority, with the deletion of “being in actual physical control,” the legislature intended to narrow the definition of “driving.”
The majority further observes, correctly, that the deletion of that phrase negated a determination of “driving” where: “even though the machine merely stands motionless, ... a person keeps the vehicle in restraint or is in a position to regulate its movements.”
The majority then appears to ignore its own observation. For, the facts presented in this case fit quite neatly within that definition: Respondent kept in restraint a *552 machine that merely stood motionless, although he was in a position to regulate its movement. More importantly, the discrete definition of “actual physical control,” quoted above, originated in a case with facts that are conspicuously similar to those at hand:
The defendant was found by a police officer fast asleep behind the wheel of his camper-truck on a private parking lot adjacent to the city street with the engine still active and the transmission engaged in the park position. The head of the defendant was tucked upon his chest, right arm draped over the steering wheel, and his right hand clutched $200 in currency. The defendant awoke only after some physical effort by the officer to revive him to consciousness. 3
Even recognizing that the legislature narrowed the scope and negated the effect of being in a position to regulate a machine that is standing motionless, the majority engages in statutory interpretation that ignores its own research.
I take no issue with the majority’s interpretation of “drive.” But the 1996 amendment demonstrates that the legislature intended to de-eriminalize and remove administrative consequences in situations where an intoxicated person merely sat behind the wheel of a motionless vehicle, even where the driver is in a position to regulate its movements. The majority’s interpretation of “operate” ignores that intent.
“When the legislature amends a statute, it is presumed to have intended the amendment to have some effect.” 4 The “legislature’s action of repeal and enactment is presumed to have some substantive effect such that it will not be found to be a meaningless act of housekeeping.” 5 Because the majority opinion effectively interprets “operate” to cover situations that used to apply under the “actual physical control” term, it is contrary to legislative intent. To give effect to the legislative amendment, “operating” must mean more than keeping restrained a motionless vehicle, even while in a position to operate it.
For those reasons, I would affirm.
. Section 302.505.
. Section 577.001.1 (statutory definition of "driving”).
. Kansas City v. Troutner, 544 S.W.2d 295, 296 (Mo.App.1976). The definition quoted from Troutner is firmly attached to the situation where an intoxicated person is seated in a parked but running vehicle; see e.g., State v. Hoyt, 922 S.W.2d 443 (Mo.App.1996); Taylor v. McNeill, 714 S.W.2d 947 (Mo.App.1986); State v. O’Toole, 673 S.W.2d 25, 27 (Mo. banc 1984).
. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992).
. Clair v. Whittaker, 557 S.W.2d 236, 240 (Mo. banc 1977).