State v. Fish, 51549
| Decision Date | 14 June 1980 |
| Docket Number | No. 51549,51549 |
| Citation | 228 Kan. 204,612 P.2d 180 |
| Court | Kansas Supreme Court |
| Parties | STATE of Kansas, Plaintiff-Appellant, v. Jack Leroy FISH, Defendant-Appellee. |
Syllabus by the Court
In order for a person to be convicted of operating a motor vehicle while under the influence of intoxicating liquor as proscribed by K.S.A. 1979 Supp. 8-1567, the State must prove, either by direct or circumstantial evidence, that the accused drove the motor vehicle in an intoxicated condition.
Geary N. Gorup, County Atty., was on the brief for plaintiff-appellant.
No appearance for defendant-appellee.
This is an appeal by the State on a question reserved pursuant to K.S.A. 1979 Supp. 22-3602 (b )(3). The defendant, Jack Leroy Fish, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of K.S.A. 1979 Supp. 8-1567 which provides in part as follows:
The question reserved and presented for determination requires a construction of the term "to operate" as used in section (a ) of 8-1567. Simply stated the question propounded by the State is this: Is it a violation of K.S.A. 1979 Supp. 8-1567 (a ) for an intoxicated person to be in a motor vehicle with the motor running where there is no evidence, direct or circumstantial, that he drove the motor vehicle in that condition?
For the purpose of determining the question reserved, the facts are to be considered as undisputed. On the morning of March 10, 1979, defendant Fish was found in his motor vehicle parked off the highway at a community trash receptacle in Butler County by a citizen named Edgar Thiessen. Thiessen noticed that the windows were rolled up and that the defendant, the only occupant of the car, appeared to be asleep on the front seat. The motor was running with the gear shift of the car in "park." There was an open liquor bottle in the front seat. Thiessen tried, but was unable to arouse the defendant. Thiessen then turned off the ignition, left the car door ajar, and notified the highway patrol. Highway patrol trooper Hannah responded to the call. He awoke the defendant and requested his driver's license. Hannah noticed the difficulty defendant had in producing his driver's license and immediately suspected him of intoxication. Defendant was then arrested and later charged with operating a motor vehicle while under the influence of intoxicating liquor under K.S.A. 1979 Supp. 8-1567 (a ). We will assume that the evidence was sufficient to establish the defendant's state of intoxication. The State concedes that there is no evidence in the record to show that, at the time the defendant was observed by Thiessen and Hannah, he was driving (or moving) the car. Furthermore, there is no evidence that after he drank liquor at the trash receptacle, the defendant drove the vehicle. Assuming that the words "operating" and "driving" are synonymous and that some movement of the vehicle while under the defendant's control is needed to prove driving, the State concedes that the evidence in the case would not be sufficient to prove a violation of K.S.A. 1979 Supp. 8-1567 (a ).
On this appeal, the State requests this court to hold that there is a distinction between the terms "to operate" and "to drive" as used in K.S.A. 1979 Supp. 8-1567 (a ) and (b ). The State maintains that the word "operate" is a broader term than is the term "drive" and includes acts of a person in a motor vehicle not involving the actual driving of the vehicle. Thus, the State argues, an intoxicated person, who starts the motor of an automobile and, thereafter, remains seated in the vehicle, has violated the provisions of K.S.A. 1979 Supp. 8-1567 (a ). The State points out there is no Kansas law defining the term "to operate" in the context of this statute. There are Kansas cases which discuss the term "driving" as used in the former statute, G.S. 1949, 8-530. The Kansas cases on the subject have assumed that proof of driving or movement of the vehicle is required in order to sustain a conviction. In State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (1954), the issue before the court was the sufficiency of the evidence to support the jury's conclusion that the defendant had driven the automobile while under the influence of intoxicating liquor. In Hazen, the defendant was found in a slumped position in the driver's seat and appeared to be in a daze. The automobile was parked in the center of the right-hand lane of traffic with the motor and lights turned off. While there was no direct evidence that the intoxicated defendant had driven the vehicle, the court reasoned that it could be inferred the defendant drove the car to the spot where it was found, since the vehicle was standing in the middle of the highway. For a similar case, see State v. Dill, 182 Kan. 174, 319 P.2d 172 (1957).
In other jurisdictions, statutes prohibiting "driving" under the influence of intoxicating liquor have generally been held applicable only in cases in which it is shown that the accused placed the vehicle in motion. Statutes which prohibit "operating" a motor vehicle under the influence of intoxicating liquor have generally been more liberally interpreted to include not only the act of driving but also such acts as starting the engine or activating the electrical or mechanical devices of the vehicle. There is an excellent annotation on the subject in 93 A.L.R.3d 7, where cases on the subject are discussed in depth and the various positions of the courts are analyzed. Some jurisdictions give a broad interpretation to the term "operating" so as to cover all matters and things connected with the purpose and use of motor vehicles on the highways, whether they be in motion or at rest. At the other extreme are jurisdictions which hold that "operating" is synonymous with "driving" and require some actual movement of the vehicle.
Prior to 1971, Kansas statutes prohibited both habitual users of narcotic drugs and persons under the influence of intoxicating liquor to drive any motor vehicle within the state. See K.S.A. 8-530 (Corrick). In 1974 the legislature adopted the Uniform Act Regulating Traffic on Highways (K.S.A. 8-1401 et seq.). K.S.A. 8-530 (Corrick) was repealed in favor of K.S.A. 1979 Supp. 8-1567, which made it unlawful to operate any vehicle while under the influence of intoxicating liquor and also made it unlawful for any person under the influence of drugs to drive a vehicle. It is the position of the State that the change in wording from "drive" to "operate" indicates a legislative intent to broaden the coverage of the act to make it a crime for an intoxicated person to turn on the car's engine, thus eliminating any requirement that the vehicle must actually be moved or driven by the intoxicated person.
At first blush, the argument of the State appears to be sound. Our problem, of course, is to determine the legislative intent. In determining legislative intent, we deem it desirable to consider together the various provisions of the Uniform Act Regulating Traffic on Highways (K.S.A. 8-1401 through 8-2204). From our analysis of these provisions and an examination of Chapter 50 of the Laws of 1976 which last amended 8-1567, we have concluded that the legislature intended the words "operate" and "drive" to be considered as synonymous terms as used in K.S.A. 1979 Supp. 8-1567. In arriving at this conclusion we have taken into consideration the following sections of the Uniform Act Regulating Traffic on Highways: K.S.A. 1979 Supp. 8-1005 provides in part as follows:
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... ... Darrow , 304 Kan ... at 714; State v. Kendall , 274 Kan. 1003, 1009, 58 ... P.3d 660 (2002); State v. Fish , 228 Kan. 204, 210, ... 612 P.2d 180 (1980). An attempt to operate does not require ... movement. It encompasses those who tried to move ... ...
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Furthmyer v. Kansas Dept. of Revenue, 70093
...who operates or attempts to operate a motor vehicle." The words "operating" and "driving" are synonymous terms. State v. Fish, 228 Kan. 204, 209, 612 P.2d 180 (1980). K.S.A.1993 Supp. 8-1002(h)(1) consistently refers to "the person" who refused the test. We read the two statutes together an......
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...1999 Supp. 8–2,128 makes no difference here.” 274 Kan. at 1009, 58 P.3d 660.Instead, Kendall adhered to the holding in State v. Fish , 228 Kan. 204, 612 P.2d 180 (1980), that said “ ‘operate’ as used in [the DUI] statute should be construed to mean ‘drive,’ thus requiring some evidence, eit......
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