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Sitting in running vehicle is not ‘operating’

ImageThe Supreme Court held on Feb. 14 that, where no evidence was presented that a defendant physically activated or manipulated the controls of a vehicle, she cannot be convicted of operating while intoxicated.

On May 25, 2003, Kristin Haanstad met Timothy Satterthwaite at a bar around 7 p.m. While at the bar, Haanstad consumed alcoholic beverages. Sometime between 11:30 p.m. and 12:00 a.m., Haanstad gave Satterthwaite the keys to her car and Satterthwaite drove her and Justin Cushman to a park in the Village of Cross Plains where Satterthwaite had left his car. Haanstad sat in the passenger seat and Cushman sat in the back seat.

Satterthwaite parked the car, leaving the vehicle running and the headlights on. He then helped Cushman into his car. While Satterthwaite was doing this, Haanstad slid over from the passenger’s seat into the driver’s seat, with her body and her feet facing the passenger seat. Satterthwaite entered the car through the passenger-side door and sat there talking to Haanstad.

What the court held

Case: Village of Cross Plains v. Haanstad, No. 2004AP2232.

Issue: Can a defendant be convicted of operating while intoxicated, where she only slid into the driver’s seat, but did not touch any of the vehicle’s controls?

Holdings: No. “Operation” requires some physical manipulation of the controls necessary to put the vehicle in motion.

Counsel: Kenneth B. Axe, Paul A. Johnson, Frank C. Sutherland, Village of Cross Plains, for appellant; John M. Gerlach, Madison, for respondent.

After about ten minutes, a police officer arrived, and Haanstad was charged with operating while intoxicated, and operating with a prohibited blood alcohol concentration.

Dane County Circuit Court Judge Diane M. Nicks found Haanstad not guilty, based on the absence of any evidence that Haanstad operated the vehicle. The City of Cross Plains appealed, and the court of appeals reversed in an unpublished decision.

The Supreme Court accepted review, and reversed the court of appeals, in a unanimous decision by Justice Louis B. Butler, Jr.

Section 346.63(3)(b) provides: “‘Oper-ate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”

The court concluded that it would directly contradict the plain meaning of the statute to permit the court of appeals’ interpretation to stand. The court reasoned, “The Village does not dispute, and the court of appeals concluded, that Haanstad never physically manipulated or activated any of the vehicle’s controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. Haanstad simply sat in the driver’s seat with her feet and body pointed towards the passenger seat. Haanstad did not ‘operate’ a motor vehicle under the statute’s plain meaning.”

The court then distinguished County of Milwaukee v. Proegler, 95 Wis.2d 614, 291 N.W.2d 608 (Ct.App.1980), for several reasons, while approving of the reasoning in that case.

In Proegler, officers found the defendant sleeping alone behind the wheel of his pickup truck, which was parked partially on the right emergency ramp of I-43. The keys were in the ignition, the motor was running, and the lights and heater were on, with the transmission in park. The defendant admitted that he had driven to the spot where the officers found him, and then fell asleep.

The court in Proegler held, “The prohibition against the ‘activation of any of the controls of a motor vehicle necessary to put it in motion’ applies either to turning on the ignition or leaving the motor running while the vehicle is in ‘park.’ One who enters a vehicle while intoxicated, and does nothing more than start the engine is as much of a threat to himself and the public as one who actually drives while intoxicated. 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.

The court first distinguished Proegler because, “there was no question that the defendant had started the engine, thereby ‘activating’ the controls necessary to put the vehicle in motion.”

Second, there was substantial evidence that the defendant had actually driven the vehicle while intoxicated: the defendant was alone in the vehicle; and he admitted driving the vehicle and leaving it running.

The court wrote, “In contrast, the evidence here is undisputed that Haanstad did not drive the car to the point where the officer found her behind the wheel. Further, there is no evidence that the defendant ‘activated’ or ‘manipulated’ any control in the vehicle that is necessary to put the vehicle in motion. The Village offered no circumstantial evidence to prove that Haanstad had operated the vehicle. The Village does not contest that Satterthwaite was the individual who ‘operated’ the vehicle by driving it, placing it in park, and leaving the motor running.”

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The court added, “The Village does not claim that Haanstad drove or even touched the controls of the vehicle at any time while she was intoxicated. There is no dispute: Haanstad never touched the controls of the vehicle. As the circuit court judge so aptly stated, ‘if she is guilty, she is guilty of sitting while intoxicated.’”

The court also noted that, in Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, par. 22, 254 Wis. 2d 36, 645 N.W.2d 880, it examined the meaning of the term “operate” in sec. 350.09(9r), which concerns operation of a snowmobile, and held that, while “operation” does not necessarily require the snowmobile to actually be in motion, it does plainly require some affirmative physical act of manipulation or activation of the controls necessary to put it in motion.

Because there was no evidence, either direct or circumstantial, that Haanstad touched any controls of the vehicle necessary to put it in motion while she was intoxicated, the court held she was not operating the vehicle, reversed the court of appeals, and reinstated the circuit court’s finding of not guilty.

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David Ziemer can be reached by email.

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