Thomas v. State

• Citation: 353 A.2d 256,277 Md. 314
• Decision Date: 12 March 1976
• Docket Number: No. 91,91
• Parties: Richard Leroy THOMAS v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 314

277 Md. 314 353 A.2d 256 Richard Leroy THOMAS
v.
STATE of Maryland. No. 91. Court of Appeals of Maryland. March 12, 1976.

[353 A.2d 257]

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Timothy E. Welsh, Columbia (Jac E. Knust, Columbia, on the brief), for appellant.

Bernard A. Raum, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp. Asst. Atty. Gen., on the brief), Baltimore, for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

We are here presented with the question of whether the State adduced legally sufficient evidence to convict appellant, Richard Leroy Thomas (Thomas), of violation of Code (1957, 1970 Repl.Vol., 1974 Cum.Supp.) Art. 66 1/2, § 11-902(b) making it 'unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol.' We conclude that it did not.

On April 28, 1975, at approximately 2:25 a. m. an officer of the Howard County Police Department observed a vehicle with lights on standing on the left paved shoulder of a lighted ramp leading from Rt. 29 to Little Patuxent Parkway. The highway at that point is described as 'a good 50 feet across' with 'two lanes and a paved shoulder.' As the officer put it, as he 'approached the vehicle (he) observed that (Thomas) was either asleep or passed out on the driver's side of the vehicle. . . . (T)he windows were up. The keys were in the ignition. The motor was off. (He) tapped on the window, and work (Thomas) up and asked him to step out of his vehicle. (Thomas) had trouble locating the window handle to crank down the window, and had trouble locating the door handle . . .. Finally (Thomas) did get out and (the officer) spoke with (Thomas) and asked him

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for his driver's license and registration.' The officer 'smelled what (he) believed was an odor of alcohol, and speaking with (Thomas) himself, (the officer) caught a whiff of alcohol on his breath.' The keys to the ignition were in the accessory or off position. Thomas 'was staggering. His speech was slurred. He was disoriented.' In response to a question from the officer as to where he lived, Thomas replied that he lived 'right across the roadway, and he could see his porch light.' When Thomas refused offers of the officer to take him home he was placed under arrest, charged with driving or attempting to drive while in an intoxicated condition or while his driving ability was impaired by the consumption of alcohol.

Thomas made no attempt in the presence of the officer to drive the vehicle. The officer had no knowledge as to whether the vehicle was in operating condition nor did he make any investigation which would reveal to him how recently the vehicle had been operated. The officer said that Thomas made no explanation to him as to how the vehicle reached the location at which it was found. The officer's testimony was the sole evidence offered by the State.

The matter came on for trial in the District Court of Maryland for Howard County. Thomas was there convicted of violating § 11-902(b) relative to driving while driving ability was impaired by the consumption of alcohol. Thomas entered an appeal to the Circuit Court for Howard County where, pursuant to the provisions of Code (1974) § 12-401(c) Courts and Judicial Proceedings Article, the matter was tried de novo. He was again convicted of a violation of § 11-902(b) on the above testimony. We granted certiorari under Code (1974) § 12-305 Courts and Judicial Proceedings Article since this case represents an issue which Maryland appellate courts do not appear to have previously considered.

[353 A.2d 258] The State devoted a considerable portion of its brief to argument that under the facts and circumstances here Thomas was 'in actual physical control' of the vehicle and thus in violation of the statute. The provision relative to 'actual physical control of any vehicle' while a person is intoxicated or while his driving ability is impaired by the

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consumption of alcohol came into the Maryland Code by the enactment of Chapter 158 of the Acts of 1969. The impairment provision was added at that time as was the implied consent to take a chemical test to determine the alcoholic content of blood, breath, or urine as a condition to the exercise of the privilege of operating a motor vehicle upon the highways of this State. By that act Code (1957) Art. 66 1/2, § 206 was repealed and an entirely new § 206 enacted, which section is the antecedent of our present § 11-902. Prior to that enactment § 206 made it 'unlawful for any person . . . who is under the influence of intoxicating liquor . . . to drive or attempt to drive any vehicle . . . within this State.' We have said many times that a hornbook rule of statutory construction is that in ascertaining the intention of the Legislature all parts of a statute are to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible and that a corollary to that rule is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory. See e. g. Kadan v. Bd. of Sup. of Elections, 273 Md. 406, 415, 329 A.2d 702 (1974); A. H. Smith Sand & Gravel v. Dep't, 270 Md. 652, 659, 313 A.2d 820 (1974); and Thomas v. Police Commissioner, 211 Md. 357, 361, 127 A.2d 625 (1956). Accordingly, when the General Assembly added the words 'in actual physical control of any vehicle' to the statute it must have intended a meaning different from driving or attempting to drive. The argument of the State here that Thomas was in actual physical control of the vehicle is without merit for a very simple reason, namely, he was never so charged.

Prior to the complete revision of the Maryland motor vehicle laws by Chapter 1007 of the Acts of 1943 transferring them to Art. 66 1/2, Maryland Code (1939), Art. 56, § 199 made it unlawful for a person to 'operate or drive or attempt to operate or drive a motor vehicle on the public highways of this State when intoxicated or at all under the influence of liquor . . ..' It is significant that the statute now speaks of driving rather than operating since the term

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'operate' is generally regarded as being broader than the term 'drive.' For instance, in McDuell v. State, 231 A.2d 265 (Del.1967), the issue before the court was whether 'a conviction of violation of (the statute) prohibiting 'driving' a motor vehicle while under the influence of intoxicating liquor, necessarily constitute(d) a second offense thereunder by reason of a prior conviction of violation of (the statute by then) repealed, which prohibited 'operating' a motor vehicle while under the influence of intoxicating liquor.' ¹ Justice Herrmann there said for the court:

'The words 'operating' and 'driving' are not synonymous; they have well-recognized statutory distinctions. Of the two terms, the latter is generally accorded a more strict and limited meaning. The term 'driving' is generally used to mean, [353 A.2d 259] in this connection, steering and controlling a vehicle while in motion; the term 'operating,' on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle. See Annotation 47 A.L.R. (2d) 570, et seq. The two words have been thus distinguished in Delaware. See State v. Pritchett, 3 Storey 583, 53 Del. 583, 173 A.2d 886 (1961).

'Applying these definitions, the term 'driving' is encompassed within the term 'operating'; but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: while all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving.

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'We conclude that the Legislature intended thus to limit the Statute when in § 4176 it...