State v. Mulder

• Decision Date: 28 April 1981
• Docket Number: Nos. TC,s. TC
• Citation: 290 Or. 899,629 P.2d 816
• Parties: STATE of Oregon, Respondent, v. Billy Jean MULDER, Petitioner. 27131; CA 18649; SC 27622.
• Court: Oregon Supreme Court

Page 816

629 P.2d 816

290 Or. 899

STATE of Oregon, Respondent, v. Billy Jean MULDER, Petitioner.

Nos. TC 27131; CA 18649; SC 27622.

Supreme Court of Oregon.

Argued and Submitted April 7, 1981.

Decided April 28, 1981.

Fred E. Avera, II, Dallas, argued the cause for petitioner. With him on the briefs was Avera & Avera, Dallas.

Virginia Linder, Asst. Atty. Gen., argued the cause for respondent. On the brief was John L. Snyder, Dist. Atty., Polk County.

Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.

TONGUE, Justice.

Defendant appealed to the Court of Appeals from his conviction of "driving while suspended," ORS 487.560. He contended on that appeal that the evidence was insufficient for conviction because he was arrested while driving on the parking lot of an apartment complex which, according to defendant, was not "open to the public" within the meaning of ORS 487.535, which provides that Oregon statutes relating to major traffic offenses "apply upon any premises open to the public."

The Court of Appeals affirmed without opinion. 50 Or.App. 1, 622 P.2d 1160 (1981). We allowed defendant's petition for review because of our concern whether that parking lot was "open to the public" within the intended meaning and purpose of ORS 487.535, which provides as follows:

"(1) The provisions of chapter 451, Oregon Laws 1975, relating to the major traffic offenses defined in ORS 487.530 apply upon any premises open to the public.

"(2) As used in subsection (1) of this section, 'premises open to the public' includes any premises open to the general public for the use of motor vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for the use of the premises."

It was stipulated that defendant, at a time when his driver's license was suspended, was driving his motor vehicle on the parking lot of the Brush College Village Apartments in Salem. There are twenty apartments in four buildings. The parking lot and driveway leading into it was described as one in the shape of a "C" which "intertwines around the front of the entrances to the buildings," with a driveway from Brush College Road at one end and a "dead end" at the other. There are "head in" parking "stalls" for the twenty tenants in front of each building and additional "stalls" marked "visitors." The manager of the apartments testified that although "we don't invite the public in," this roadway and parking lot was "open to the public" and was used not only by tenants and visitors, but also by paperboys, the milkman, and "people like that," and that no attempt was made "to block off members of the public."

On his appeal to the Court of Appeals, defendant assigned as error the denial by the trial court of defendant's motion for judgment of acquittal, which was made on the ground that the state had "failed to prove an element of the crime: that is, that the defendant drove upon premises 'open to the public' " and that this parking lot "is not premises open to the public." In his petition for review, defendant's sole contention is that this parking lot was "neither a 'highway' nor 'premises open to the public' " within the intended meaning of ORS 487.535 and that a contrary interpretation of that statute, as adopted by the trial court, is "incorrect and contrary to the legislative history of ORS 487.535." In support of that contention, defendant says that:

"Mr. Donald Paillette, the Project Director, explained that the measure would make the Vehicle Code applicable to parking lots at such places as taverns, department stores and supermarkets. It was specifically noted that the statute would not extend the application of the code to the private parking areas of apartments or condominiums. Minutes, Interim Committee on the Judiciary, September 24, 1974, P. 14.

"From the minutes noted above it seems that the legislature did not intend for the Vehicle Code to regulate driving in the type of area herein involved." ¹

Upon examination of the legislative history of ORS 487.535, it appears that it was adopted as Section 86 of the Oregon Vehicle Code of 1975. In the official "commentary" upon that section, its purpose was stated to be as follows:

"The section applies the provisions relating to serious traffic offenses to 'premises open to the public' which would include locations such as parking lots and other areas off the highway. This broadens the application of these provisions beyond the general provision of § 4 which would otherwise apply the rules only to vehicles operated on the highway. The committee believes that the named offenses, most of which are crimes, involve the kind of conduct that is so flagrant and dangerous as to warrant prohibition of such conduct on non-highway locations that are open to the general public for use of motor vehicles." (Emphasis added)

According to the Minutes of the Interim Committee on Judiciary, September 24, 1974, pp. 13-14, Mr. Paillette, in explaining the intended application of the statute and in answer to a question by Representative Paulus, said that:

" ' * * * he believed section 1 would be applicable to parking lots for such places as taverns, department stores, supermarkets, etc.' " (Emphasis added) ²

It also appears that in explanation of the then-proposed bill to the Senate Committee on Judiciary it was stated by Mr. Paillette that " 'The intent here is to apply these offenses (Class A traffic offenses) to parking lots, off-highway locations where under ordinary circumstances the public driving vehicle is used on these premises. It means that contrary to the existing law wherein in order to be guilty of one of these offenses it has to be established that it is committed on a public highway. This would enable an arrest to be made in a DUIL situation even though the driving had not yet occurred on a public highway. There is no distinction between a public parking lot and one privately owned.' Minutes, Senate Committee on Judiciary, January 23, 1975, p. 3." (Emphasis added)

As we read the legislative history of ORS 487.535, the primary purpose of that statute was to enlarge the zone of statutory protection of the public for Class A traffic offenses from public highways to "non-highway locations that are open to the general public for use of motor vehicles" and where persons and their vehicles are subjected to danger by drunken, reckless, unlicensed and "hit and run" drivers; that although specific reference was made in the legislative history to parking lots for such places as taverns, department stores and supermarkets, there was no intent to limit the application of the statute to those specific parking lots but that, on the contrary, the intention was to make "no distinction between a public parking lot and one privately owned," and to extend the protection of the statute to all parking lots which share similar characteristics of public access and exposure to danger from such improper driving of motor vehicles. ³

There was testimony in this case by the manager of the apartments that there was no "attempt made to block off members of the public" from the use of this parking lot and that it was "open to the public." Under the facts of this case, including this testimony, we are of the opinion that there was sufficient evidence from which the trier of the facts could properly find that the parking lot on which defendant was driving his motor vehicle was one which constituted "premises open to the public" within the intended purpose and meaning of ORS 487.535.

For these reasons we affirm both the judgment of conviction by the trial court and the decision of the Court of Appeals affirming that judgment of conviction.

LENT, Justice, dissenting.

Defendant was charged by amended information of the district attorney with "driving while suspended," ORS 487.560. The amended information charged that the prohibited driving was "upon premises open to the public, to-wit: a parking lot near Brush College Road, N.W." I shall assume for the sake of this discussion that ORS 487.535(1) intends to prohibit "driving while suspended" upon premises open to the public, although the language chosen to accomplish that intention is not absolutely clear. I do so because defendant has not challenged the effectiveness of the language in that respect. Moreover, I agree with the majority that defendant did not raise a "fair warning" issue. See majority opinion, n. 1.

The case was tried without a jury, and at the close of evidence defendant moved for a judgment of acquittal, ORS 136.445,

"on the ground that the state has failed to prove an element of the crime; that is, that the defendant drove upon premises open to the public. The theory that the state has proven through the evidence and stipulation is that he drove a vehicle and that he drove a vehicle on the parking lot described by Mrs. Johnson on Exhibit A, but we assert that that parking lot is not premises open to the public. That being an element of the offense of driving while suspended, we would move for a judgment of acquittal."

The trial court denied the motion without explanation and then, apparently as trier of fact, made a "finding" that the parking lot described by Mrs. Johnson, the apartment manager, "is premises open to the public within the meaning of the statute."

Defendant's assignment of error was in denying his motion for judgment of acquittal. This raised only the question of whether the trial court was correct in finding that there was evidence which would support a verdict against the defendant. There was no jury, which relieved the trial court from having to define for the jury what is meant by the "general public," upon which the statutory definition...