State v. Garber

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-026

                            DECEMBER TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
Michael A. Garber                 }
                                  }          DOCKET NO. 2045


             In the above entitled cause the Clerk will enter:

     Defendant appeals his conviction at a bench trial of being in actual
physical control of a vehicle on a highway while under the influence of
intoxicating liquor in violation of 23 V.S.A. { 1201(a)(2).  We affirm.

     Defendant's primary challenges rest on the premise that "actual
physical control of any vehicle" within the meaning of { 1201 requires that
the vehicle be operable.  Following from this, defendant argues that because
the trial court did not find against his testimony that he had pulled the
coil wire before entering his vehicle, this element of operability has not
been found or proven.  Defendant's argument can stand only if the statute
requires that the vehicle was fully operable for an actual physical control
conviction to be upheld.  We hold that it does not.

     Conviction under { 1201 does not require a demonstration by the State
that defendant's vehicle was fully operable.  The statute by its terms
places no such burden on the State, and we can discern no underlying intent
to impose this burden on the establishment of every prima facie case of a
violation of the statute.  We expressly found that 1925, No. 70, { 87, which
preceded { 1201 and prohibited a person from "operat[ing] or attempt[ing] to
operate a motor vehicle while under the influence of intoxicating liquors,"
did not require a showing that the vehicle was fully operable.  See State v.
Storrs, 105 Vt. 180, 183-84, 163 A. 560, 562 (1933) (Court rejected
argument that to operate a vehicle within the meaning of the statute
something must be done to put the engine in motion; conviction upheld where
vehicle's motor could not be started because of wet wiring); State v. Tacey,
102 Vt. 439, 440-42, 150 A. 68, 69-70 (1930) (defendant operated vehicle
where he steered or attempted to steer it while it was being towed).
Further, we have upheld actual physical control convictions despite
testimony that the vehicle was not fully operable.  See State v. Griffin,
152 Vt. 41, 43, 563 A.2d 642, 644(1989) (actual physical control conviction
upheld where defendant testified that he was coasting down the road because
vehicle's radiator was damaged and without water); State v. Blaine, 148 Vt.
272, 273-74, 531 A.2d 933, 934 (1987) (actual physical control conviction
upheld where defendant testified that he could not engage vehicle's
transmission).

     Defendant's conduct was sufficient to warrant a conviction of actual
physical control of a vehicle while under the influence of intoxicating
liquor.  Defendant testified that, while under the influence, he moved his
vehicle in an attempt to place it in another parking space.  The trial
court found that "[t]he car did go into reverse for a short distance.  It
moved to some degree.  It rolled backwards."  This conduct falls within the
purview of the statute, and was sufficiently found and proven.

     Our holding that { 1201 does not require a showing that the vehicle was
fully operable does not render the statute violative of due process in this
case.  Proscription of defendant's movement of his vehicle, while under the
influence, is rationally related to the statute's purpose of protecting the
public.  Consequently, defendant cannot successfully maintain his
overbreadth challenge, Arbeitmen v. District Court of Vermont, 522 F.2d 1031, 1033-34 (2d Cir. 1975) (outside First Amendment context, "'a person to
whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may be applied
unconstitutionally to others'") (quoting Broadrick v. Oklahoma 413 U.S. 601,
610 (1973)).  Nor can he successfully maintain his void-for-vagueness
challenge, Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-
95 & n.7 (1982) (where statute implicates no constitutionally protected
conduct, person "who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of
others").

     Defendant's waiver of his right to a jury trial renders moot the issue
of the composition of the jury venire.

     Affirmed.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice