State v. Eckhardt, 95-484
| Decision Date | 27 August 1996 |
| Docket Number | No. 95-484,95-484 |
| Citation | 165 Vt. 606,686 A.2d 104 |
| Parties | STATE of Vermont v. Dennis ECKHARDT. |
| Court | Vermont Supreme Court |
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
ENTRY ORDER
Defendant appeals from a judgment ordering civil suspension of his license, claiming that the trial court erred in concluding that a driveway serving a single residence constitutes a "highway" within the meaning of 23 V.S.A. § 1201(a)(2). 1 We affirm.
On March 10, 1995, Vermont State Trooper Michael Macarilla observed a car speeding and followed it into defendant's driveway. While Trooper Macarilla was questioning the driver, defendant drove up and parked. Defendant got out, and Trooper Macarilla, observing indications of intoxication, processed defendant for DUI.
After a bench trial, the court found that defendant had been driven home by a friend to the "top of the driveway," that the friend got out, and that defendant drove to the garage and parked. The court, concluding that the private driveway constitutes a "public highway" under 23 V.S.A. § 4(13) 2, ordered defendant's license suspended. On appeal, defendant argues that the trial court erred in holding that a private driveway falls within the definition of a public highway for the purposes of Vermont's DUI statute.
"The primary object of the [DUI statute] is the protection of the public from injury to person or property by persons operating or attempting to operate motor vehicles while under the influence of intoxicating liquor...." State v. Bromley, 117 Vt. 228, 230, 88 A.2d 833, 835 (1952); see also State v. Paquette, 151 Vt. 631, 633, 563 A.2d 632, 635 (1989). With this purpose in mind, and as evidenced by substantial precedent, the word "highway" in 23 V.S.A. § 1201 has been given a broad construction. State v. McNeil, 164 Vt. 129, ----, 665 A.2d 51, 53 (1995); State v. Trucott, 145 Vt. 274, 283, 487 A.2d 149, 154 (1984) (). In determining what qualifies as a public highway, the key question is whether the way is open to the general circulation of the public. Trucott, 145 Vt. at 283, 487 A.2d at 155. Thus, we have held that the surface of a frozen lake, Bourgon v. Farm Bureau Mut. Ins. Co., 128 Vt. 593, 595, 270 A.2d 151, 153 (1970), the "pull-off" area of a public highway, Trucott, 145 Vt. at 283-84, 487 A.2d at 155, and a large restaurant parking lot with unrestricted public access, State v. Jarvis, 145 Vt. 8, 13, 482 A.2d 65, 68 (1984), all constitute public roads or highways under § 4(13).
Here, we are asked to decide whether a private driveway to a single residence, with no markings or barriers that restrict access, is a public highway. Relying on McNeil, 164 Vt. at ----, 665 A.2d at 51, defendant asserts that his driveway is closed to the general public. In McNeil, a parking lot used primarily by employees was surrounded by a chain link fence, had a narrow opening to the street and was posted with a "no trespassing" sign. We found that these characteristics sent an unequivocal message to the general public of "no trespassing," and concluded that the lot was not a public highway for purposes of § 4(13). Id. at ----, 665 A.2d at 53. Here, in contrast, defendant offered no evidence that public access to his driveway was restricted in any way.
Ownership of the way is not controlling in defining what constitutes a public highway. Trucott, 145 Vt. at 283, 487 A.2d at 155. Nor is the determining factor whether the public has a right to use the way. Bromley, 117 Vt. at 230, 88 A.2d at 835. Instead, as noted above, the salient question is whether the way is "open temporarily or permanently to public or general circulation of vehicles." 23 V.S.A. § 4(13).
As the trial court found, defendant's driveway Delivery and service vehicles regularly use driveways for unannounced visits to the owner's home. Driveways' confluence with roads and highways make them convenient pull-off and turnaround areas. It is not uncommon for a stranger to approach a home via a driveway to ask for directions, rather than hail the occupant from the road.
Driveways, as we have previously acknowledged, are only semi-private. State v. Pike, 143 Vt. 283, 287, 465 A.2d 1348, 1351 (1983). " 'In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends.' " Id. at 287-88, 465 A.2d at 1351 (quoting State v. Corbett, 15 Or.App. 470, 516 P.2d 487, 490 (1973)). Defendant's driveway, like most driveways in Vermont, is open to the general circulation of vehicles, and, in keeping with the objective of protecting the public from injury, thus constitutes a public highway under 23 V.S.A. § 4(13) for the purposes of Vermont's DUI statute.
The dissent argues that driveways fall outside the scope of 23 V.S.A. § 4(13) because of their limited and infrequent use by the public. We have never predicated application of the term upon these conditions, and refuse to do so now. Prior cases looked only to whether gates, signs, or a legal right existed to exclude the general public from driving a vehicle into the way at issue. As noted above, defendant's driveway exhibited none of these characteristics. Nor does today's decision create new rights in the public to use a private driveway; rather, it simply recognizes a driveway's typical use, and extends the protection of the DUI statute to that portion of geography from which the public has not been denied access. Moreover, the dissent's "warning" to the public is unfounded. Outside the DUI context, the term "highway" remains unmodified by case law. Our expansive definition of the word "highway" for the purposes of the DUI statute has a clearly stated purpose: to provide the broadest possible protection to the public from the menace of drunk drivers. Law enforcement officers should not have to wait until drunk drivers are in traffic on the highway to make a DUI stop.
Affirmed.
Vermonters beware! Have you ever left a car with a broken headlight sitting in your highway (excuse me, driveway) overnight? Have you ever moved an unregistered or uninsured car or trailer from one part of the driveway to another, or moved your car into the garage without putting on a seat belt? After today's decision, these are all motor vehicle violations, punishable by fines of up to $100.00. See 23 V.S.A. § 1243(a) () (emphasis added); id. § 301 () (emphasis added); id. § 800(a) () (emphasis added); id. § 1259(a) () (emphasis added). A reminder to sports fans: remove those "Red Sox Fan Parking Only" signs from your garage doors. See id. § 1027(a) () (emphasis added). And don't forget to yield to cattle, sheep, or goats being herded across your driveway. See id. § 1127(b) () (emphasis added).
The majority concludes that a private, residential driveway is in fact a "highway" for purposes of the motor vehicle title. Specifically, the majority holds that the state may revoke defendant's license on the ground that he drove from the top of his driveway to his house while under the influence of intoxicating liquor. See 23 V.S.A. § 1201(a)(2). Defendant maintained, and the court found, that he had not driven on the road. A friend drove defendant and his truck to the top of the driveway and then left; defendant drove the rest of the way to the house. This behavior, according to the majority, violated § 1201(a)(2), which prohibits operating "any vehicle on a highway" while under the influence of intoxicating liquor.
The majority buries the statutory definition of "highway" in a footnote. In view of the extraordinary holding in this case, our citizens deserve to be fully apprised of the activities that can now be conducted on property that heretofore, in my opinion, every Vermonter believed to be private. 23 V.S.A. § 4(13) states:
" 'Highway,' 'road,' 'public highway' or 'public road' shall include all parts of any bridge, culvert, roadway, street, square, fairground or other place open temporarily or permanently to public or general circulation of vehicles, and shall include a way laid out under authority of law...."
(Emphasis added.) Vermonters will be unpleasantly surprised to learn that, according to this Court, perfect strangers may drive in and through their private driveways with impunity. The enjoyment of your home and lands should be greatly enhanced by the "general circulation" of the cars and trucks that may now travel freely on your driveway.
This decision not only flies in the face of common sense, it violates almost every canon of statutory construction that could be brought to bear in this case. Interpretation of this provision could...
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