State v. Boucher, No. 13261

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; CALLAHAN
Citation541 A.2d 865,207 Conn. 612
Decision Date31 May 1988
Docket NumberNo. 13261
PartiesSTATE of Connecticut v. Roland BOUCHER.

Page 865

541 A.2d 865
207 Conn. 612
STATE of Connecticut
v.
Roland BOUCHER.
No. 13261.
Supreme Court of Connecticut.
Argued March 8, 1988.
Decided May 31, 1988.

[207 Conn. 613]

Page 866

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, was James G. Clark, Asst. State's Atty., for the appellant (state).

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

Before [207 Conn. 612] PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and COVELLO, JJ.

[207 Conn. 613] CALLAHAN, Associate Justice.

The defendant was charged in an information with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a). The charge resulted from the defendant's arrest at 12:06 a.m. on January 16, 1986, while seated in a pickup truck that had its motor running in the parking lot of a Midas Muffler (Midas) shop in the town of Manchester. Prior to trial, the defendant moved to dismiss the information against him. For the purpose of his motion, the defendant stipulated that he was operating a motor vehicle while intoxicated in the Midas parking lot at 285 Main Street in Manchester and that the parking lot was a parking area "for ten or more cars," a necessary element of § 14-227a(a). 1 For the purpose of the defendant's motion, the state conceded that the use of the parking lot was restricted to Midas customers.

[207 Conn. 614] In support of his motion to dismiss, the defendant argued that he could not be convicted of a violation of § 14-227a(a) because the parking area in which he was arrested was limited to use by Midas customers and was, therefore, not "open to public use" as required by the definition of "parking area" in General Statutes § 14-212(5), 2 which definition is applicable

Page 867

to § 14-227a(a). He claimed, consequently, that the Midas parking lot was not a parking area in which operating a motor vehicle while under the influence of intoxicating liquor was prohibited by § 14-227a(a). The trial court agreed with the defendant's reasoning and dismissed the information against him with prejudice.

The state subsequently sought and obtained permission to appeal the decision of the trial court to the Appellate Court. A divided Appellate Court affirmed the trial court's decision. State v. Boucher, 11 Conn.App. 644, 528 A.2d 1165 (1987) (Daly, J., dissenting). A majority of the Appellate Court concluded that, because the use of the Midas parking area was restricted to Midas customers and employees, it was not "open to public use" and was, therefore, not a parking area that came within the purview of § 14-227a. 3

[207 Conn. 615] On the state's petition, we granted certification limited to the question: "Did the Appellate Court erroneously preclude the applicability of General Statutes §§ 14-227a and 14-212(5) to the operator of a motor vehicle in the parking area of a business establishment to which the general public was invited?" We conclude that the majority of the Appellate Court took too restrictive a view of the phrase "open to public use," and we reverse.

For an area to be "open to public use" it does not have to be open to "everybody all the time." State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 1011, 102 S.W.2d 99 (1937); see also Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga.App. 403, 410, 170 S.E.2d 709 (1969); Commonwealth v. Baughman, 357 Pa.Super. 535, 538, 516 A.2d 390 (1986), appeal denied, 515 Pa. 572, 527 A.2d 534 (1987). The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character. See Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59, 63 (3d Cir.1986); Thayer v. California Development Co., 164 Cal. 117, 127, 128 P. 21 (1912); State ex rel. Anderson v. Witthaus, supra; People v. Sherman, 158 N.Y.S.2d 835, 837 (Mag.Ct.1957); State v. Mulder, 290 Or. 899, 903-904, 629 P.2d 816 (1981); Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 369 (S.D.1978); 1 R. Erwin, Defense of Drunk Driving Cases (3d Ed.) § 1.03[c].

It is common knowledge that Midas spends a great deal of money on advertising to induce the public to [207 Conn. 616] avail itself of its products and services and to patronize its various Midas shops. See Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 491, 356 A.2d 117 (1975); Mayock v. Martin, 157 Conn. 56, 63, 245 A.2d 574 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 924, 21 L.Ed.2d 808 (1969). Midas, in turn, makes its products and services available to any member of the public inclined to bring his or her automobile to Midas for repairs. There is no known criterion for the use of a Midas parking lot except being a Midas customer. Further, there is no known criterion for being a potential Midas customer except perhaps a noisy muffler and a knowledge that "nobody beats Midas, nobody." In short, Midas invites the general public to make use of its services and Midas' services are available to any member of the general public disposed to procure them.

Page 868

Midas' invitation to the public, its...

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18 practice notes
  • State v. Stevens, No. 14525
    • United States
    • Supreme Court of Connecticut
    • 23 Febrero 1993
    ...184, 579 A.2d 484 (1990); Quinnett v. Newman, 213 Conn. 343, 350 n. 1, 568 A.2d 786 (1990) (Peters, C.J., dissenting); State v. Boucher, 207 Conn. 612, 617-18, 541 A.2d 865 (1988); Shore v. Stonington, 187 [224 Conn. 740] Conn. 147, 162 n. 2, 444 A.2d 1379 (1982) (Peters, C.J., dissenting);......
  • Scrapchansky v. Town of Plainfield, No. 14655
    • United States
    • Supreme Court of Connecticut
    • 13 Julio 1993
    ...v. Baughman, 357 Pa.Super. 535, 538, 516 A.2d 390 (1986), appeal denied, 515 Pa. 572, 527 A.2d 534 (1987)." State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988). The evidence presented by the defendants [226 Conn. 453] in support of their motion for summary judgment clearly demonstrate......
  • State v. Martinez-Gonzalez, 37737.
    • United States
    • Court of Appeals of Idaho
    • 3 Enero 2012
    ...quality of potential users that gives a use its public character." Gibson, 126 Idaho at 258, 881 P.2d at 553 (quoting State v. Boucher, 207 Conn. 612, 541 A.2d 865, 867 (1988) ). We looked to physical factors, such as lack of physical barriers or posted signs controlling access to the prope......
  • State v. Martinez-Gonzalez, No. 37737.
    • United States
    • Court of Appeals of Idaho
    • 9 Mayo 2012
    ...quality of potential users that gives a use its public character.” Gibson, 126 Idaho at 258, 881 P.2d at 553 (quoting State v. Boucher, 207 Conn. 612, 541 A.2d 865, 867 (1988)). We looked to physical factors, such as lack of physical barriers or posted signs controlling access to the proper......
  • Request a trial to view additional results
18 cases
  • State v. Stevens, No. 14525
    • United States
    • Supreme Court of Connecticut
    • 23 Febrero 1993
    ...184, 579 A.2d 484 (1990); Quinnett v. Newman, 213 Conn. 343, 350 n. 1, 568 A.2d 786 (1990) (Peters, C.J., dissenting); State v. Boucher, 207 Conn. 612, 617-18, 541 A.2d 865 (1988); Shore v. Stonington, 187 [224 Conn. 740] Conn. 147, 162 n. 2, 444 A.2d 1379 (1982) (Peters, C.J., dissenting);......
  • Scrapchansky v. Town of Plainfield, No. 14655
    • United States
    • Supreme Court of Connecticut
    • 13 Julio 1993
    ...v. Baughman, 357 Pa.Super. 535, 538, 516 A.2d 390 (1986), appeal denied, 515 Pa. 572, 527 A.2d 534 (1987)." State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988). The evidence presented by the defendants [226 Conn. 453] in support of their motion for summary judgment clearly demonstrate......
  • State v. Martinez-Gonzalez, 37737.
    • United States
    • Court of Appeals of Idaho
    • 3 Enero 2012
    ...quality of potential users that gives a use its public character." Gibson, 126 Idaho at 258, 881 P.2d at 553 (quoting State v. Boucher, 207 Conn. 612, 541 A.2d 865, 867 (1988) ). We looked to physical factors, such as lack of physical barriers or posted signs controlling access to the prope......
  • State v. Martinez-Gonzalez, No. 37737.
    • United States
    • Court of Appeals of Idaho
    • 9 Mayo 2012
    ...quality of potential users that gives a use its public character.” Gibson, 126 Idaho at 258, 881 P.2d at 553 (quoting State v. Boucher, 207 Conn. 612, 541 A.2d 865, 867 (1988)). We looked to physical factors, such as lack of physical barriers or posted signs controlling access to the proper......
  • Request a trial to view additional results

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