State v. Boucher, 5404

• Decision Date: 23 September 1987
• Docket Number: No. 5404,5404
• Citation: 11 Conn.App. 644,528 A.2d 1165
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Roland BOUCHER.

Page 1165

528 A.2d 1165

11 Conn.App. 644

STATE of Connecticut v. Roland BOUCHER.

No. 5404.

Appellate Court of Connecticut.

Argued May 13, 1987.

Decided July 28, 1987.

Certification Denied Sept. 23, 1987.

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, were James G. Clark, Asst. State's Atty., and William R. Korey, Legal Intern, for appellant (State).

James J. Sullivan, Manchester, for appellee (defendant).

Before HULL, DALY and BIELUCH, JJ.

HULL, Judge.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a), ¹ and failure to carry a registration in violation of General Statutes § 14-13. He was subsequently charged with failure to appear in violation of General Statutes § 53a-173. The defendant pleaded guilty to all charges except driving under the influence of intoxicating liquor (DUI). The defendant moved to dismiss the DUI charge claiming that the parking lot on which he was arrested was not "open to public use" in accordance with General Statutes § 14-212(5). ²

The trial court granted the defendant's motion to dismiss and subsequently granted the state leave to appeal. The sole issue presented by the state's appeal is whether the parking area where the defendant was arrested was "open to public use," thus bringing the lot within the purview of General Statutes § 14-227a(a).

The facts of this case are uncontradicted. At the time of the defendant's arrest in Manchester, he was sitting in a motor vehicle parked on a Midas Muffler parking lot with the motor running. The defendant does not contest that he was intoxicated at the time. Thus, the only question before the trial court on the charge of DUI was whether the Midas Muffler parking lot was "open to public use," as defined by General Statutes § 14-212(5). If the Midas parking lot was open to public use, then the defendant is susceptible to criminal prosecution for DUI.

At trial, the defendant presented evidence that the lot was used exclusively by Midas employees and customers and that large signs inform the public that noncustomers who park on the lot are subject to being towed at the owner's expense. From these facts, the trial court found (1) that the parking area was private, and (2) that the parking area was not "open to public use" as that term is used by the definitional section of the motor vehicle statute, General Statutes § 14-212(5).

The relevant language of General Statutes § 14-227a(a) provides: "No person shall operate a motor vehicle while under the influence of intoxicating liquor ... in any parking area for ten or more cars...." Only parking areas which are "open to public use with or without charge"; General Statutes § 14-212(5); are covered by the DUI statute. The state argues that the trial court erred in finding the Midas parking area not "open to public use" and that the plain language "open to public use" as a modifier of "parking area" brings lots like the Midas lot within the reach of the drunk driving statute. We disagree.

The state claims that the plain language of General Statutes § 14-212(5) includes the Midas parking lot, and that, even if the statute is not clear on its face, the legislative history indicates the intention to include shopping center parking lots. ³ This is not dispositive of the issue presented by this case, however. The defendant does not contest the fact that private shopping center parking lots are covered by the statute. The defendant contends that the Midas parking area, which was limited to use by Midas customers and employees, did not serve the general public. This use is distinguished from off street parking at shopping centers where the user is encouraged to patronize a variety of stores.

The state does not dispute that the use of the Midas lot was limited to a restricted group. The sole question is whether the use by the restricted group is sufficient to constitute public use. A public use exists where the public has a right to receive and enjoy the benefit of the use. Oxford v. Beacon Falls, 183 Conn. 345, 347, 439 A.2d 348 (1981). Where the use is for a "limited number of persons, or a restricted group," it is not a public use. Ballentine's Law Dictionary (3d Ed.) The court must give each word and phrase in legislative acts meaning. State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); LaCroix v. Board of Education, 2 Conn.App. 36, 41, 475 A.2d 1110 (1984). "Open to public use" logically distinguishes malls and other shopping center parking lots from lots that are restricted to use by a discrete class, and where that restricted use is strictly enforced.

The Indiana Appellate Court faced a similar question in Bridgewater v. State, 441 N.E.2d 688 (Ind.App.1982). In Bridgewater, the defendant was arrested for DUI while parked on a bank's private parking lot. The court in Bridgewater found the bank parking lot open to public use because the bank acquiesced in the use of the lot by the general public after banking hours. No similar facts were presented by the state in this case. To the contrary, the defendant presented uncontradicted evidence that the lot was closed to the general public. Thus, the trial court could properly conclude that by giving the words "open to public use" their plain meaning; see Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979); this parking lot was not open for use by the general public.

We are not called on to determine the application of the definition of "parking area" to every possible factual situation. For the facts presented in this particular case, we find the trial court properly held that the Midas Muffler parking area was not open to public use. The court cannot, by construction, read into legislation provisions not clearly stated. State v. Baker, 195 Conn. 598, 602, 489 A.2d 1041 (1985); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984); Metropolitan District v. Barkhamsted, 3 Conn.App. 53, 70, 485 A.2d 1311 (1984).

We thus conclude that the trial court correctly construed "open to public use" as used by General Statutes § 14-212(5) to have a limited meaning not covering the Midas parking lot.

There is no error.

In this opinion BIELUCH, J., concurred.

DALY, Judge, dissenting.

The question before us is whether the parking lot, where the defendant was arrested, is "open to public use," thus bringing the lot within the meaning of General Statutes § 14-227a(a). The role of the courts in cases of statutory construction is limited and, as the majority correctly stated, "we cannot read provisions into legislation." The legislative history and related statutes, however, help eliminate any ambiguity in the statute. Accordingly, I dissent.

"It is basic, of course, that a statute is to be construed as a whole and that the words used therein must be interpreted in their plain and ordinary meaning 'unless the context indicates that a different one was intended.' Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). If the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction. Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); Aaron v. Conservation Commission, 183 Conn. 532, 548, 441 A.2d 30 (1981); Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). 'When legislation contains a specific definition, the courts are bound to accept that definition.' (Citations omitted.) International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961). 'Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.' Doe v. Manson, supra; Ziperstein v. Tax Commissioner, 178 Conn. 493, 423 A.2d 129 (1979). In applying the usual and accepted meaning to words not defined in a statute where to do so, as here, comports with the statutory purpose, one court stated that '[w]e derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions.' Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977)." Johnson v. Manson, 196 Conn. 309, 316-17, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986).

The issue in this case involves the definition of the phrase "open to public use." Unlike the term "parking lot," which is defined in § 14-212(5), the legislature has not provided us with a definition of "open to public use." A commonly understood meaning of the word "open" is "free to be entered and used." Webster, New World Dictionary (1979). The term "public use" is defined to mean: "The use of a premises by the public at large, that is, the general unorganized public, rather than by one person, a limited number of persons, or a restricted group." Ballentine's Law Dictionary. If the majority were to apply the common ordinary meanings of "open" and "public use," the result would have been that the Midas parking lot was covered by the DUI statute. It is clear that the parking lot falls within the scope of the statute because its users were unorganized and members of the public at large.

In addition to looking at the dictionary definition for the commonly understood meanings, courts may also look at the common understanding as expressed in case law. Zipperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979). The majority relies on Oxford v. Beacon Falls, 183 Conn. 345, 347, 439 A.2d 348 (1981), wherein our Supreme Court premised its holding on Laurel Beach Association v. Milford, 148 Conn. 233, 235-36, 169 A.2d 748 (1961). Laurel Beach held (p. 236): "The general test of public use is the right of the public to receive and enjoy...