State v. Emmons

State v. Emmons (2000-509); 173 Vt. 492; 788 A.2d 24

[Filed 29-Oct-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-509

                             OCTOBER TERM, 2001


State of Vermont	             }	      APPEALED FROM:
                                     }
                                     }
     v.	                             }	      District Court of Vermont,
                                     }	      Unit No. 3, Caledonia Circuit
Benjamin J. Emmons	             }
                                     }	      DOCKET NO. 1063-10-99 Cacr

                                              Trial Judge: Walter M. Morris, Jr.

             In the above-entitled cause, the Clerk will enter:


       Defendant Benjamin J. Emmons appeals the Caledonia District Court's
  determination that  defendant was not entitled to present to a jury an
  affirmative defense, as set forth in 23 V.S.A.  § 1201(f), to operating a
  motor vehicle while under the influence of intoxicating liquor.  On appeal, 
  defendant raises two claims: (1) that he was entitled to assert the defense
  where he was charged with  "actual physical control" of a vehicle while
  under the influence of intoxicating liquor, and (2) that  defendant
  presented evidence sufficient to submit this defense to a jury.  We affirm.

       The material facts are not in dispute.  Acting on information obtained
  from a reliable source, a  St. Johnsbury police officer found defendant
  asleep behind the wheel of a Chevy Blazer parked in a  tavern parking lot. 
  The keys were in the vehicle's ignition, and the vehicle was running.  Upon
  closer  inspection, the officer smelled intoxicants and saw that
  defendant's eyes were bloodshot and watery.   After being questioned,
  defendant explained that he had been drinking with friends that night.  
  Realizing he had had too much to drink, defendant left the tavern and
  entered the back seat of his  vehicle to wait for a ride from a friend.  In
  a half hour's time, defendant became cold and got in the  front seat of his
  truck, where he started the engine to keep warm while waiting for his
  friends.  Some  time after that defendant fell asleep or lost
  consciousness.  After taking defendant into custody, the  officer searched
  the vehicle and testified that he found four full bottles of beer and one
  empty bottle  in the front passenger seat.  Defendant's tested blood
  alcohol concentration was 0.142.

       In October 1999, defendant was charged with being in actual physical
  control of a motor  vehicle while under the influence of intoxicating
  liquor, in violation of 23 V.S.A. § 1201(a)(2).   Defendant pled not guilty
  and subsequently obtained counsel.  Defendant filed a motion in limine 
  requesting authorization to present to a jury the defense set forth in 23
  V.S.A. § 1201(f), which had  recently been enacted by the Legislature. 
  After the trial court denied defendant's motion, defendant  entered a
  conditional plea of nolo contendere, reserving the right to appeal the
  trial court's ruling.  

       On appeal, defendant contends that he has presented evidence
  sufficient to avail himself of the  defense set forth in § 1201(f), which
  provides: 

       Once the state has established a prima facie case with respect to the 
  element of operation, the defendant may assert as an affirmative defense, 

 

  to be proven by clear and convincing evidence, that the person was not in 
  actual physical control of the vehicle because the person: (1) had no 
  intention of operating the vehicle; and (2) had not in fact operated the 
  vehicle in violation of [section 1201(a)].

       23 V.S.A. § 1201(f) (emphasis added).  Defendant acknowledges that the
  statutory language literally  applies only where the State shows operation,
  and, in this case, defendant is charged with being in  actual physical
  control of the vehicle, an alternative element under 23 V.S.A. § 1201(a). 
  He argues if  the statute is construed literally the defense will never
  apply in any case because the State will always  charge "actual physical
  control" rather than operation.  The State urges that we apply the plain 
  meaning of the statute and affirm because it did not charge operation in
  this case.

       We decline to reach defendant's argument.  Assuming § 1201(f) applies
  in a prosecution  charging actual physical control, defendant must still
  meet the elements of the defense.  Under the  second element, if the
  proffered evidence shows that defendant did in fact operate the vehicle,
  then  he is not entitled to present the defense to the jury.  See State v.
  Warshow, 138 Vt. 22, 24-25, 410 A.2d 1000, 1002 (1979).

       As applied to motor vehicles, the Legislature and this Court have
  always defined broadly the  term "operation."  23 V.S.A. § 4(24) construes
  operation "to cover all matters and things connected  with the presence and
  use of motor vehicles on the highway, whether they be in motion or at
  rest." And, as early as 1933, in State v. Storrs, we held that the mere
  "turning of the ignition switch and the  effect of this upon the
  self-starter was an operation of the car, since it was a matter or thing 
  connected with its use and presence upon the highway."  105 Vt. 180, 184,
  163 A. 560, 562 (1933).   Here, defendant has admitted that he started his
  vehicle, thereby showing that he operated the  vehicle.

       Affirmed.

                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice