Fitch v. State

• Decision Date: 10 May 1993
• Docket Number: No. CR,CR
• Citation: 853 S.W.2d 874,313 Ark. 122
• Parties: Robert FITCH, Appellant, v. STATE of Arkansas, Appellee. 93-21.
• Court: Arkansas Supreme Court

Page 874

853 S.W.2d 874

313 Ark. 122

Robert FITCH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-21.

Supreme Court of Arkansas.

May 10, 1993.

Christopher O'Hara Carter, Mt. Home, for appellant.

Cathy Derden, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This case involves interpretation of the Omnibus DWI Act. The facts as stipulated are that at 11:45 p.m. on August 11, 1992, Robert Fitch, the appellant, was arrested and charged with his third offense of driving while intoxicated after a deputy sheriff was called to the scene by a neighbor; the breathalyzer test revealed a blood-alcohol level of 0.256.

Fitch was seen by neighbors and the arresting officer driving a 250 cc Suzuki three wheeler in his own yard and in the adjoining neighbor's yard; there was no evidence that Fitch had driven the three wheeler onto a road or highway. Such a vehicle is commonly known as an all-terrain vehicle (ATV). No driver's license, registration, or liability insurance is required to operate an ATV under Arkansas law.

Fitch was found guilty of DWI in Baxter County Municipal Court, and then appealed to the circuit court which found operation of the ATV "constitutes a vehicle under Arkansas DWI law" and that Fitch's "operation of the vehicle, even though not on a public roadway, still constituted a violation of the law ... when he did so in an intoxicated condition." The court sentenced Fitch to 365 days in jail with all but sixty days suspended, revoked his driver's license for two years, and required him to pay a fine of $900.00 plus costs of $332.25. He was further ordered to attend an inpatient program of at least twenty-eight days in an approved alcohol rehabilitation program and was placed on one year of probation. Fitch appeals from the circuit court's decision.

This is a case of first impression in which this court is required to define the term "motor vehicle" under the Omnibus DWI Act which is codified as Ark.Code Ann. §§ 5-65-101 [313 Ark. 124] through 117 (1987 and Supp.1991); the General Assembly failed to define this term as it relates to this Act. Relevant to the present case, § 5-65-103(a) provides, "It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle."

Fitch urges this court to adopt a policy that if a vehicle is not required to be registered, insured, or require a driver's license to operate, it does not qualify as a motor vehicle under § 5-65-103(a) of the Omnibus DWI Act. The State asks this court to apply the general rule and give effect to the intention of the legislature in giving the term motor vehicle its fixed and commonly accepted meaning. State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991). When construing a statute, it is necessary to interpret that statute in concert with others that are "relevant to the subject and give it a meaning and effect derived from the combined whole." Cousins v. Dennis, 298 Ark. 310, 315, 767 S.W.2d 296 (1989).

A motor vehicle is generally defined as "a self-propelled wheeled conveyance that does not run on rails." American Heritage Dictionary, 817 (2d Ed.1982). Under the Transportation Title chapter on Registration and Licensing, Ark.Code Ann. § 27-14-207(b) (Supp.1991) defines the term motor vehicle as follows:

"Motor Vehicle" means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.

The term motor vehicle is defined the same throughout the various chapters of the Transportation Title, e.g. see §§ 27-16-207(b), 27-19-206, and 27-49-219(b) (1987). ¹

Ark.Code Ann. §§ 27-21-101 through 109 (Supp.1991) of the Transportation Title refers to "all-terrain vehicles" (ATVs) and § 27-21-102(1) defines them as follows:

[E]very three-, four-, or six-wheeled vehicle seventy-five inches (75") or less in width, having a dry weight of eight-hundred pounds (800 lbs.) or less, equipped with low pressure tires designed primarily for off-road recreational use and having an engine displacement of no more than six hundred fifty cubic centimeters (650 cc). The term "all-terrain vehicle" shall not include any golf cart, riding lawnmower, or lawn or garden tractor[.]

Section 27-21-101 describes the purpose of the legislation covering ATVs, which is to regulate and restrict their use so as to insure the safety and general welfare of the citizenry "by limiting the situations where all-terrain vehicles are permitted to be used in a dangerous and unsafe fashion." While ATVs are generally restricted from use on the "public streets and highways of this state" and thus are exempt from registration requirements, § 27-21-106(a) lists specific conditions under which ATVs may be lawfully operated upon the public streets and highways. In § 27-21-109(b), four requirements are listed which operate as a complete defense to the operation of an ATV on a public street or highway; the statute does not identify a defense to driving an ATV while intoxicated.

In reviewing the statutory provisions that regulate ATVs, it is clear that an ATV meets the definition of a motor vehicle as set out in the Transportation Title set out hereinabove since ATVs are self-propelled and do not require rails. For definitional purposes, we keep in mind that the statutory scheme regarding ATVs indicates the General Assembly's concern for the public's safety by its having regulated the manner in which the ATVs are to be operated. In fact, the statutes regulate usage of ATVs on both private and public property. For these reasons, we conclude the Omnibus DWI Act's employment of the term motor vehicle includes all-terrain vehicles.

In his second point for reversal, Fitch argues that DWI is a traffic offense, and since he was not on a public street or highway when he was arrested, his conviction under that act must be reversed. We disagree.

Nowhere within the Omnibus DWI Act is prosecution for DWI limited only to those driving on the public streets or highways. In Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990), we held that DWI is a traffic offense and "a violation of a law regulating the operation of a vehicle upon a roadway". In Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993), we affirmed a conviction for DWI, holding that a traffic offense can occur on a private roadway. In Sanders we pointed out that the Omnibus DWI Act "contains no location or geographic element, and we cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway." Id. at 13, 846 S.W.2d 651.

Fitch cites State of Washington v. Day, 96 Wash.2d 646, 638 P.2d 546 (1981), to support his argument that prosecution for DWI should not occur where the facts arise on non-roadway or...