State v. Larson, Cr. N

• Decision Date: 09 January 1992
• Docket Number: Cr. N
• Citation: 479 N.W.2d 472
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Bradley Hal LARSON, Defendant and Appellant. o. 910215.
• Court: North Dakota Supreme Court

Page 472

479 N.W.2d 472

STATE of North Dakota, Plaintiff and Appellee, v. Bradley Hal LARSON, Defendant and Appellant.

Cr. No. 910215.

Supreme Court of North Dakota.

Jan. 9, 1992.

Jerome L. Renner, States Atty., Steele, for plaintiff and appellee.

James A. Wright of Weiss, Wright, Paulson & Merrick, Jamestown, for defendant and appellant.

VANDE WALLE, Justice.

Bradley Hal Larson appealed from a judgment of conviction for driving a motor vehicle while under the influence of intoxicating liquor in violation of section 39-08-01, NDCC. We affirm.

At Larson's trial, the following stipulated facts were submitted to the court. Larson and two others were traveling from Hebron to Jamestown in a bus towing a pickup and another vehicle. The bus, which was driven by Dan Quigley, broke down. The party continued its journey with Larson steering the bus and Quigley pushing the bus with the pickup. The pickup over-heated and the party stopped. While the pickup cooled, Larson and the others drank alcohol. Later, they resumed their journey.

The caravan was stopped by an officer of the North Dakota Highway Patrol. At that time, Larson was again steering the bus and Quigley was again driving the pickup which was pushing the bus. Larson controlled the steering and brakes of the bus. Quigley controlled the pickup and, incidentally, had the keys to the bus in his pocket. The motor of the bus was inoperable. After failing field sobriety tests, Larson was given a blood-alcohol test. Larson's blood-alcohol content was .19 percent by weight.

The issue in this case is whether Larson's control of the bus while it was being pushed by another vehicle constituted "driving" under section 39-08-01, NDCC. Larson was convicted of driving under the influence of alcohol (DUI); he was neither charged nor convicted of being in actual physical control of a vehicle while under the influence (APC). The two offenses are separate crimes. State v. Jacobson, 338 N.W.2d 648 (N.D.1983). "Driving" is, therefore, an essential element of DUI. Larson argues that he was not the "driver" of the bus because its motor was disabled; the bus was being powered by the pickup driven by Quigley. Larson believes Quigley was the driver of the bus.

Section 39-08-01, NDCC, provides:

"1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if ... the following appl[ies]:

a. That person has a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving."

Words used in a statute are understood in their ordinary sense unless they are defined by statute. NDCC Secs. 1-02-02, 1-02-03; State v. Johnson, 417 N.W.2d 365 (N.D.1987). Chapter 39-08 does not expressly define what conduct constitutes the driving of a vehicle. The general provisions of Title 39, the motor vehicle title, define "Driver" as "every person who drives or is in actual physical control of a vehicle," section 39-01-01(15), NDCC, and "Vehicle" as including "every device in, upon, or by which any person or property may be transported or drawn upon a public highway ...," section 39-01-01(87), NDCC. Because under Jacobson, we distinguish one who drives a vehicle, as opposed to one who is in actual physical control of a vehicle, for purposes of section 39-08-01, these definitional provisions do not resolve the issue.

Larson's position is heightened by the comparison of the definition of "driver" with that of "operator." Section 39-01-01(44), NDCC, defines "Operator" as "every person who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle." (Emphasis added). Because the bus motor was disabled and because the legislature prohibited "driving," not "operating," a vehicle, Larson contends he did not violate the statute under which he was convicted. This argument is undercut by comparing the definition of "driving" which includes the control of any vehicle, with that of "operating," which includes the control of any motor vehicle, even one under tow of another motor vehicle. Compare NDCC Sec. 39-01-01(15) with NDCC Sec. 39-01-01(44); see also NDCC Sec. 39-01-01(38) [defining "motor vehicle" as self-powered vehicle]. It appears that "driving a vehicle" is intended to delimit at least as much conduct on the highways as "operating a motor vehicle," and possibly more.

What is clear from the preceding review of the statutory provisions is that the words of section 39-08-01(1), NDCC, as defined by statute, do not settle the question of what constitutes the crime of "driving a vehicle" while under the influence of alcohol. We, therefore, consider the ordinary meaning of the verb "drive" as it is used in section 39-08-01, NDCC, which is "to control the movement or direct the course of ... an automobile." Webster's New World Dictionary of the American Language 427 (2nd College Ed.1980). Larson steered the bus and controlled its brakes; he controlled and directed the movement of the bus.

We recognize that an ambiguous criminal statute should...