State v. McNeil

STATE_V_MCNEIL.94-436; 164 Vt 129; 665 A.2d 51

[Filed 11-Aug-1995]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports. 
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                   No. 94-436


State of Vermont                                 Supreme Court

                                                 On Appeal from
     v.                                          
                                                 District Court of Vermont,
                                                 Unit No. 2, Chittenden Circuit

Margaret McNeil                                  June Term, 1995


Alden T. Bryan, J.

       Scot Kline, Chittenden County State's Attorney, and Pamela Hall
  Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

       Francis X. Murray, Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       DOOLEY, J.   Defendant entered a conditional plea of guilty to a
  charge of driving under the influence of intoxicating liquor (DUI), 23
  V.S.A. § 1201(a)(2), and was granted an interlocutory appeal on the
  question of whether she was in control of the vehicle "on a highway" within
  the meaning of § 1201(a)(2).(FN1)   We answer that question in the negative.
    
       A dispatcher for the Yellow Cab Company in Burlington observed
  defendant's vehicle late at night in the parking lot where the company
  stores and maintains its cabs.  Notified by the dispatcher, a police
  officer arrived, observed signs consistent with intoxication, and processed
  defendant for DUI.  Defendant consented to a blood test, and her
  blood-alcohol content (BAC) registered .231%.  

 

       Defendant moved to dismiss claiming that the Yellow Cab parking lot
  was not a "highway" within the meaning of 23 V.S.A. §§ 4(13) & 1201(a). 
  The definition section, § 4(13), states "`Highway,' `road,' `public
  highway' or `public road' shall include all parts of any bridge, culvert,
  roadway, street, square, fairground or other place open temporarily or
  permanently to public or general circulation of vehicles, and shall include
  a way laid out under authority of law."  (Emphasis supplied.)  The court
  found that the parking lot was accessible to the adjoining city street
  through an opening, wide enough to allow one car to pass through, in a
  chain link fence.  On the fence are "no trespassing" signs.  The lot has a
  dirt surface.  The cab company treats the lot as private property for
  business invitees.(FN2)   In fact, it is used primarily by employees.  When
  vehicles not on cab company business are observed in the lot, the police
  are called, as in this case.  Based on these findings, the court concluded,
  "[W]e do not have a way that's open to the public."

       Despite its conclusion on public access,(FN3) the court concluded that
  defendant was in actual physical control of her vehicle on a highway,
  reasoning:

 

          Well, clearly the Legislature did not mean public
       access to be the determinative test.  The Court feels
       it's more appropriate to focus on the nature of the
       openness and define what general circulation of
       vehicles can mean.  This lot is open to vehicular
       traffic and given the public safety purpose behind the
       DUI statute and its reference to vehicles on a public
       highway, the Court does not believe that the
       Legislature intended a restrictive interpretation, that
       it intended a liberal interpretation so as to reach all
       reasonably anticipated places where vehicles under the
       control and operation of persons under the influence of
       alcohol might be. . . .

          And on the facts presented this morning, the Court
       will conclude that whether desired by the owner or not
       that the lot is open to the general circulation of
       vehicles and that the State can make a prima facie case
       that this lot was a highway as defined by the statute
       and so the motion to dismiss is denied.  

 (Emphasis supplied.)  The present appeal followed.

       Defendant argues that the Yellow Cab parking lot was not "open
  temporarily or permanently to public or general circulation of vehicles"
  within the meaning of 23 V.S.A. § 4(13).  We have long held that "highway,"
  as used in 23 V.S.A. § 1201, should be given a broad construction.  State
  v. Trucott, 145 Vt. 274, 283, 487 A.2d 149, 154 (1984).  The definition
  includes both ways laid out by law, such as a public highway, id., and
  roads in private ownership.  State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632, 635 (1989).(FN4)   We have emphasized, however, that the key . . . is
  whether it is open to the general circulation of the public.  Trucott, 145
  Vt. at 283, 487 A.2d  at 155.

       We have decided one other parking lot case, State v. Jarvis, 145 Vt.
  8, 482 A.2d 65 (1984).  The parking lot served a bar in Stowe; it had a
  large opening and accommodated six or seven rows of cars.  There was no
  indication access was restricted in any way, and the arresting officer
  stated his opinion that the lot was open to the general circulation of the
  public.  

 

  We held that the jury could find that the parking lot was a highway. 
  Id. at 12-13, 482 A.2d  at 68.

       The distinction between Jarvis and this case is best explained in the
  Connecticut Supreme Court decision of State v. Boucher, 541 A.2d 865 (Conn.
  1988), involving operation of a vehicle by an intoxicated person in a Midas
  Muffler shop parking lot.  The Connecticut statute criminalized operation
  under the influence of alcohol in a parking area if the area is "open to
  public use."  Id. at 866.  The Court defined the term:

          For an area to be "open to public use" it does not
       have to be open to "everybody all the time."  The
       essential feature of a public use is that it is not
       confined to privileged individuals or groups whose
       fitness or eligibility is gauged by some predetermined
       criteria, but is open to the indefinite public.  It is
       the indefiniteness or unrestricted quality of potential
       users that gives a use its public character.

  Id. at 867 (citations omitted).  The Court concluded that the Midas
  lot was open to public use because the public was invited to it "either
  expressly or by implication to come for the purpose of trading or
  transacting business."  Id. at 868; see also People v. Hawkins, 448 N.W.2d 858, 860-61 (Mich. Ct. App. 1989) (under Boucher analysis, shopping center
  parking lot is "open to the general public" as required by Michigan
  statute).

       The parking lot in Jarvis was clearly open to the general circulation
  of the public, as noted in Boucher.  Just as clearly, the lot in this case
  does not meet that standard.  The lot is used by employees to leave their
  cars, the taxicabs used in the business and persons specifically invited to
  enter.  To the public generally, the message is "no trespassing," a message
  enforced, as in this case, by requests for police assistance.  Unless we
  are prepared to write public access out of the law, we cannot conclude that
  this defendant was in control of her vehicle on a highway.

       The trial court's rationale could have been adopted by the Legislature
  to prohibit driving or control of a vehicle while intoxicated wherever it
  occurs.  See, e.g., State v. McGlone, 570 N.E.2d 1115, 1117 (Ohio 1991)
  (Ohio DUI law prohibits driving under the influence "anywhere in the state"
  and not just on public streets).  By including as an element of the offense
  that the

 

  operation or control occur on a "highway" and defining the term as it
  did, however, the Legislature opted for a more narrow approach. 

       Question answered in the negative.

                                       FOR THE COURT:



    
                                       _______________________________________
                                       Associate Justice




  ------------------------------------------------------------------------
                              Footnotes


  FN1.       23 V.S.A. § 1201(a)(2) states "A person shall not operate,
  attempt to operate, or be in actual physical control of any vehicle on a
  highway . . . when the person is under the influence of intoxicating
  liquor; . . . ."

  FN2.   Because the taxicabs are radio dispatched, it is rare for
  customers to seek service at the Yellow Cab facility.  By affidavit in
  April 1994, the owner and manager of the cab company stated:  

       Virtually every yellow cab customer is picked up via
       telephone and dispatch at locations other than 43A Briggs
       Street, Burlington.  There are very isolated situations
       when the public is dropped off at 43A Briggs Street to
       take a cab.  For example, the last time I recall a
       customer being dropped off was New Year's Day when the
       State Police dropped off three customers who needed a ride
       because their vehicles had become disabled.  When
       customers are dropped off at the 43A Briggs Street site,
       the vehicles dropping them off do not normally enter the
       parking lot.  Instead these vehicles normally park on the
       shoulder of Briggs Street, outside of the parking lot
       along the chain-link fence, and the customers walk through
       the entranceway to the Company's offices, located off the
       lot.

  FN3.    The dissent argues that we are reviewing a determination of
  fact which is entitled to deference.  We agree with the trial court's
  factual findings, but decide that they do not support the court's
  conclusions of law.


  FN4.    In State v. Paquette, the trial court found that the private
  road was open to the public and the general circulation of vehicles because
  it was plowed and maintained by the Town and provided secondary access to a
  convenience store and a public school.  151 Vt. 631, 634, 563 A.2d 632, 635
  (1989).  Here, the trial court concluded that the way was not open to the
  public.  In view of the critical distinction, we do not agree with the
  dissent that we have impliedly overruled Paquette.

  -------------------------------------------------------------------------
                               Dissenting

 

  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 94-436


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 2, Chittenden Circuit

Margaret McNeil                                   June Term, 1995


Alden T. Bryan, J.

       Scot Kline, Chittenden County State's Attorney, and Pamela Hall
  Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

       Francis X. Murray, Burlington, for defendant-appellant

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       MORSE, J., dissenting.   Defendant was found slumped over the wheel of
  her car in a private parking lot owned by a cab company.  In support of its
  conclusion that the parking lot was not a "highway" for purposes of the DUI
  statutes, the Court relies on the facts that (1) the lot is unpaved and
  surrounded by a chain link fence, except for an unobstructed entrance wide
  enough for only one car; (2) a "No Trespassing" sign restricts use of the
  lot; and (3) the owners have unauthorized vehicles towed.  It is conceded,
  however, that customers, employees, and others who have business with the
  cab company are permitted to use the lot.(FN1)

       The trial court conclusion that the parking lot was a "highway" for
  purposes of 23 V.S.A. §§ 4(13) and 1201, given our cases on the subject, is
  correct.  Whether the Yellow Cab parking lot was open "to public or general
  circulation of vehicles" is a mixed question of law and fact, entitled to
  deference under the clearly erroneous standard.  This Court treats the
  trial court's 

 

  determination that the lot was a "highway" solely as a question of
  law, and as though it is not entitled to deference.

       Because the primary objective of the DUI statutes is to protect the
  public from injury, § 4(13) is "`extremely broad.'"  State v. Paquette, 151
  Vt. 631, 633, 563 A.2d 632, 635 (1989) (quoting State v. Trucott, 145 Vt.
  274, 283, 487 A.2d 149, 154 (1984)).  Thus, we have found the word
  "highway" to include a frozen lake, a gravel rest area immediately adjacent
  to a traveled portion of a state highway, and significantly, a parking lot
  accessible to the public.  See State v. Bailey, 149 Vt. 528, 528-29, 546 A.2d 786, 787 (1988) (citing cases).  Here, the parking lot was open to
  members of the public -- customers of the cab company and others who chose
  to enter; accordingly, it fits within the ambit of § 1201.  A different
  conclusion is not warranted by the limited width of the lot's entranceway,
  the existence of a "No Trespassing" sign, or the owners' right to have
  unauthorized vehicles towed.  See Paquette, 151 Vt. at 633, 563 A.2d  at
  634; see also State v. Bromley, 117 Vt. 228, 230, 88 A.2d 833, 835 (1952)
  ("The determining factor was not whether the place was private property and
  not whether the public had the right to use it.").

       As the company admitted, even trespassers were allowed to "circulate"
  there for a reasonable period of time before steps were taken to have them
  removed.  Moreover, I find nothing in the statute to suggest that
  trespassers are immune from DUI prosecution.  Heretofore, no case has
  turned on such a distinction.  If I understand the Court's opinion
  correctly, every private driveway and road in the state, within the meaning
  of § 4(13), is not "open" to the public.  Thus, Paquette, which held that a
  private road with "private drive" and "no trespassing" signs was within §
  4(13), has been impliedly overruled.

       The Connecticut case of State v. Boucher, 541 A.2d 865 (Conn. 1988),
  does not support reversing the factual determination in this case.  The
  Boucher court specifically held that the Midas lot in issue was open to the
  public because the public was impliedly invited to come there to transact
  business.  Id. at 869.  That is this case.

 

       I respectfully dissent and would affirm.



                              _______________________________________
                              Associate Justice


  --------------------------------------------------------------------------
                              Footnotes


  FN1.  Therefore, this Court's interpretation of the trial court's
  findings that the lot was closed categorically to the public is inaccurate. 
  Only a portion of the public was not invited to use the lot -- those who
  had no business being there.