State v. Budden, 50583

• Decision Date: 09 June 1979
• Docket Number: No. 50583,50583
• Citation: 595 P.2d 1138,226 Kan. 150
• Parties: STATE of Kansas, Appellee, v. Bernard D. BUDDEN, Appellant.
• Court: Kansas Supreme Court

Page 1138

595 P.2d 1138

226 Kan. 150

STATE of Kansas, Appellee, v. Bernard D. BUDDEN, Appellant.

No. 50583.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. In a prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of K.S.A.1978 Supp. 8-1567 and K.S.A. 8-1501, the words "elsewhere throughout the state" in 8-1501 are held to be synonymous with anywhere throughout the state and include private as well as public property.

2. Under K.S.A.1978 Supp. 8-1567, three things must be established: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court. (Following State v. Hall, 1 Kan.App.2d 730, Syl. P 1, 573 P.2d 635 (1977).)

3. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal, they are not properly before the appellate court for review.

John C. Humpage, of Humpage, Berger & Hoffman, Topeka, argued the cause and was on the brief for appellant.

Dwight W. Duesing, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Edward W. Pugh, County Atty., were with him on the brief for appellee.

HOLMES, Justice:

This is a direct appeal from a finding of guilty by the trial court of one count of driving while under the influence of intoxicating liquor. K.S.A.1978 Supp. 8-1567 and K.S.A. 8-1501.

The case was submitted to the trial judge upon an agreed statement of facts wherein the defendant admitted operating a motor vehicle On private property while under the influence of intoxicating liquor. The events took place in a parking lot of a tavern in Lincolnville, Kansas.

The principal issue of appeal is whether the offense of driving while under the influence of intoxicating liquor applies to the operation of a motor vehicle upon private property as opposed to a public highway.

K.S.A.1978 Supp. 8-1567 provides in pertinent part:

"(a) It is unlawful and punishable as provided in subsection (c) of this section for any person who is under the influence of intoxicating liquor to operate any vehicle within this state."

K.S.A. 8-1501 provides:

"The provisions of this article relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:

(a) Where a different place is specifically referred to in a given section; and

(b) The provisions of K.S.A. 8-1566 to 8-1568, inclusive, and the provisions of article 10 of chapter 8 of the Kansas Statutes Annotated, and any acts amendatory thereof, shall apply upon highways and elsewhere throughout the state."

Appellant contends that the issue is controlled by State v. Bailey, 184 Kan. 704, 339 P.2d 45 (1959). In Bailey the defendant was convicted of driving while under the influence of intoxicating liquor and attacked the admissibility of a blood alcohol test as evidence of intoxication. During the course of the opinion the court stated:

"The offense of unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor is comprised of several elements, each of which must be proved beyond a reasonable doubt by the State. The State must prove at the time in question (1) the defendant Was operating the motor vehicle in question; (2) that the instrumentality which the defendant was operating was a Motor vehicle within the contemplation of such term in the statute; (3) that the defendant was operating such vehicle On a public highway; and (4) that he was Under the influence of intoxicating liquor." p. 711, 339 P.2d p. 50.

At the time Bailey was decided the pertinent statutes were G.S.1949, 8-502 and 8-530 which were the predecessors to and essentially the same as our present statutes and provided:

"8-502. Provisions of act refer to vehicles upon the highways; exceptions. The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except: 1. Where a different place is specifically referred to in a given section. 2. The provisions of sections 18 to 32 (8-518 to 8-532), inclusive, shall apply upon highways and elsewhere throughout the state."

"8-530. Persons under the influence of intoxicating liquor or narcotic drugs; penalties. (a) It is unlawful and punishable as provided in subdivision (b) of this section for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within this state."

Appellant argues that the statement in Bailey that the operation of the motor vehicle be upon a public highway is controlling as the legislature did not see fit to change the statutes after our decision in Bailey but reenacted them in essentially the same form. Appellant then points out that all statutes are presumed to be enacted with full knowledge of the existing law and with reference to it. Rogers v. Shanahan, 221 Kan. 221, 225, 565 P.2d 1384 (1976). The fallacy in appellant's argument is that the language quoted from Bailey was not controlling of that decision and constituted dicta. The issue was not one of public highway versus private property but one of the admissibility of blood alcohol test results as evidence. There was no claim that the offense took place on private property.

In State v. Hall, 1 Kan.App.2d 730, 573 P.2d 635 (1977), the Court of Appeals stated:

"Under K.S.A. 8-1567, three things must be established: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court." p. 731, 573 P.2d p. 636.

In Hall the court made no reference to Bailey and therefore the decision would appear to be inconsistent with it. However, again the question of public highway versus private property was not an issue.

With the constantly increasing number of motor vehicles and accidents we recognize the importance of this controversy to public welfare and safety. We will consider this question as one of first impression and take this opportunity to lay the issue to rest.

The specific issue facing the court is the determination of the meaning of "elsewhere throughout the state." K.S.A. 8-1501 by its terms is written into and must be considered as a part of K.S.A.1978 Supp. 8-1567. See Klaus v. Goetz, 211 Kan. 126, 131, 505 P.2d 726 (1973).

Our statutes regulating traffic are based upon the Uniform Act Regulating Traffic on Highways.

K.S.A. 8-2203 provides:

"This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it."

Seven jurisdictions having similar legislation have had the opportunity to address the public versus private property controversy. All have held that statutes of this type apply to private property. State v. Hollobaugh, 297 A.2d 395 (Del.Super.1972) (Delaware); People v. Erickson, 108 Ill.App.2d 142, 246 N.E.2d 457 (1969) (Illinois); Seattle v. Wright, 72 Wash.2d 556, 433 P.2d 906 (1967) (Washington); State v. Valeu, 257 Iowa 867, 134 N.W.2d 911 (1965) (Iowa); Cook v. State, 220 Ga. 463, 139 S.E.2d 383 (1964) (Georgia); State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948) (Minnesota); State v. Cormier, 141 Me. 307, 43 A.2d 819 (1945) (Maine).

In People v. Guynn, 33 Ill.App.3d 736, 338 N.E.2d 239 (1975), the "elsewhere" language was construed to encompass all areas of the state, public or private:

"(4) We conclude the words "elsewhere throughout the State" encompass all areas of the State, public or private. While this issue is one of first impression in Illinois, in reaching this conclusion, we find support in the courts of other States where the statutory language is identical (See: e. g.: State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948); State v. Valeu (1965), 257 Iowa 867, 134 N.W.2d 911; Cook v. State, 220 Ga. 463, 139 S.E.2d 383; Seattle v. Wright (1967), 72 Wash.2d 556, 433 P.2d 906). The cases referred to recognize that the dangerous menace posed by the intoxicated driver is not ameliorated by the nature of the property on which he is driving or in control of a motor vehicle (See Annot., 29 A.L.R.3d 938, notably at 949, Et seq. (1970))." p. 739, 338 N.E.2d p. 241.

Appellant argues that the word "elsewhere" is not as broad as "...