An important question the decision leaves unanswered is whether a defendant could be convicted of operating while intoxicated if, although he never drives the vehicle or starts the engine, he does place the key into the ignition.
In an unpublished decision of the court of appeals, the court held that a defendant could be convicted, even though the engine was not running. State v. Wolford, 230 Wis.2d 749, 604 N.W.2d 35 (Table), 1999 WL 733822 (Unpublished decision, Wis.App.1999).
In Wolford, the defendant was found in the drivers seat slumped over the steering wheel, with the key in the ignition in the on position. The dashboard lights were lit, but the engine was not running.
Reversing the district courts dismissal of the case, the court reasoned, First, the ignition is a control necessary to put a motor vehicle in motion. Second, placing the key in the ignition and turning it on constitutes manipulation of activation of a control. This conduct, therefore, falls within the clear and unambiguous meaning of the statute, and [is] consistent with the legislative intent.
However, the court in Wolford failed to address the following language from County of Milwaukee v. Proegler, 95 Wis.2d 614, 291 N.W.2d 608, 614 (Ct.App.1980), that suggests the defendant could not be found guilty: Operation of a vehicle occurs either when a defendant starts the motor and/or leaves it running.
The Supreme Court in the case at bar did not expressly approve this language, although it approved the decision in Proegler that starting the vehicle is sufficient to constitute operation.
Certain language in the decision in the case at bar would support conviction under the same facts as in Wolford: According to the explicit words of the statute, in order to operate a motor vehicle, the statute requires that the person physically manipulate or activate any of the controls of the motor vehicle necessary to put it in motion.
If a defendant turned the ignition to on, he clearly has physically manipulated a control necessary to put it in motion.
On the other hand, he has also deliberately chosen not to take a step necessary to put the vehicle in motion actually starting the engine.
In addition, the court cites the following language from Proegler with approval: The hazard always exists that the car may be caused to move accidentally, or that the one who starts the car may decide to drive it Proegler, 95 Wis.2d at 626. This would not be a concern if the vehicle is not actually started.
As a result, attorneys for both the prosecution and defense can find language in the case to support their positions in future cases similar to Wolford.
– David Ziemer
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David Ziemer can be reached by email.