State v. Eckhardt

Annotate this Case
State v. Eckhardt  (95-484); 165 Vt 606; 686 A.2d 104

[Opinion Filed 27-Aug-1996]

                          ENTRY ORDER

                  SUPREME COURT DOCKET NO. 95-484

                          JUNE TERM, 1996

State of Vermont                }     APPEALED FROM:
     v.                         }     District Court of Vermont,
                                }     Unit No. 1, Rutland Circuit
Dennis Eckhardt                 }
                                }     DOCKET NO. 69-3-95 Rdcs

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

       Defendant appeals from a judgment ordering civil suspension of his
  license, claiming that the trial court erred in concluding that a driveway
  serving a single residence constitutes a "highway" within the meaning of 23
  V.S.A. § 1201(a)(2).(FN1)  We affirm.

       On March 10, 1995, Vermont State Trooper Michael Macarilla observed a
  car speeding and followed it into defendant's driveway.  While Trooper
  Macarilla was questioning the driver, defendant drove up and parked. 
  Defendant got out, and Trooper Macarilla, observing indications of
  intoxication, processed defendant for DUI.

       After a bench trial, the court found that defendant had been driven
  home by a friend to the "top of the driveway," that the friend got out, and
  that defendant drove to the garage and parked.  The court, concluding that
  the private driveway constitutes a "public highway" under 23 V.S.A. §
  4(13)(FN2), ordered defendant's license suspended.  On appeal, defendant
  argues that the trial court erred in holding that a private driveway falls
  within the definition of a public highway for the purposes of Vermont's DUI

       "The primary object of the [DUI statute] is the protection of the
  public from injury to person or property by persons operating or attempting
  to operate motor vehicles while under the influence of intoxicating liquor
  . . . ."  State v. Bromley, 117 Vt. 228, 230, 88 A.2d 833, 835; see also
  State v. Paquette, 151 Vt. 631, 633, 563 A.2d 632, 635.   With this purpose
  in mind, and as evidenced by substantial precedent, the word "highway" in
  23 V.S.A. § 1201, has been given a broad construction. State v. McNeil, ___
  Vt. ___, ___, 665 A.2d 51, 53 State v.  Trucott, 145 Vt. 274, 283, 487 A.2d 149, 154 (1984) ("examined in its entirety, [23 V.S.A.]


  § 4(13) is extremely broad.").  In determining what qualifies as a public
  highway, the key question is whether the way is open to the general
  circulation of the public.  Trucott, 145 Vt. at 283, 487 A.2d  at 155. 
  Thus, we have held that the surface of a frozen lake,  Bourgon v. Farm
  Bureau Mut. Ins. Co., 128 Vt. 593, 595, 270 A.2d 151, 153 (1970), the
  "pull-off" area of a public highway, Trucott, 145 Vt. at 283-84, 487 A.2d 
  at 155, and a large restaurant parking lot with unrestricted public access,
  State v. Jarvis, 145 Vt. 8, 13, 482 A.2d 65, 68 (1984), all constitute
  public roads or highways under § 4(13).

       Here, we are asked to decide whether a private driveway to a single
  residence, with no markings or barriers that restrict access, is a public
  highway.  Relying on McNeil, ___ Vt. at ___, 665 A.2d  at 51, defendant
  asserts that his driveway is closed to the general public.  In McNeil, a
  parking lot used primarily by employees was surrounded by a chain link
  fence, had a narrow opening to the street and was posted with a "no
  trespassing" sign.  We found that these characteristics sent an unequivocal
  message to the general public of "no trespassing,"  and concluded that the
  lot was not a public highway for purposes of § 4(13).  Id. at ___, 665 A.2d 
  at 53.  Here, in contrast, defendant offered no evidence that public access
  to his driveway was restricted in any way.

       Ownership of the way is not controlling in defining what constitutes a
  public highway. Trucott, 145 Vt. at 283, 487 A.2d  at 155.  Nor is the
  determining factor whether the public has a right to use the way.  Bromley,
  117 Vt. at 230, 88 A.2d  at 835.   Instead, as noted above, the salient
  question is whether the way is "open temporarily or permanently to public
  or general circulation of vehicles. . . ."  23 V.S.A. § 4(13).

       As the trial court found, defendant's driveway "is just like that of
  every other driveway in the city of Rutland.  It is open to anyone who
  wants to drive in it, and there is no restriction whatsoever." Delivery and
  service vehicles regularly use driveways for unannounced visits to the
  owner's home. Driveways' confluence with roads and highways make them
  convenient pull-off and turnaround areas.  It is not uncommon for a
  stranger to approach a home via a driveway to ask for directions, rather
  than hail the occupant from the road.

       Driveways, as we have previously acknowledged, are only semi-private. 
  State v. Pike, 143 Vt. 283, 287, 465 A.2d 1348, 1351 (1983).  "`In the
  course of urban life, we have come to expect various members of the public
  to enter upon such a driveway, e.g., brush salesmen, newspaper boys,
  postmen, Girl Scout cookie sellers, distressed motorists, neighbors,
  friends.'"  Id. at 287-88, 465 A.2d  at 1351 (quoting State v. Corbett, 510 P.2d 487, 490 (Or. App. Ct. 1973)).  Defendant's driveway, like most
  driveways in Vermont, is open to the general circulation of vehicles, and,
  in keeping with the objective of protecting the public from injury, thus
  constitutes a public highway under 23 V.S.A. § 4(13) for the purposes of
  Vermont's DUI statute.

       The dissent argues that driveways fall outside the scope of 23  V.S.A.
  §4(13) because of their limited and infrequent use by the public.  We have
  never predicated application of the term upon these conditions, and refuse
  to do so now.  Prior cases looked only to whether gates, signs, or a legal
  right existed to exclude the general public from driving a vehicle into the
  way at issue.  As noted above, defendant's driveway exhibited none of these
  characteristics.  Nor does today's decision create new rights in the public
  to use a private driveway; rather, it simply recognizes a driveway's
  typical use, and extends the protection of the DUI statute to that portion
  of geography from which the public has not been denied access.  Moreover,
  the dissent's "warning" to the public is unfounded.  Outside the DUI
  context, the term "highway" remains unmodified by case law. Our expansive
  definition of the word "highway" for the purposes of 


  the DUI statute has a clearly stated purpose: to provide the broadest
  possible protection to the public from the menace of drunk drivers.  Law
  enforcement officers should not have to wait until drunk drivers are in
  traffic on the highway to make a DUI stop.



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

FN2.  23 V.S.A. § 4(13) states, "'Highway,' 'road,' '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 . . . ."


       JOHNSON, J., dissenting.  Vermonters beware!  Have you ever left a car
  with a broken headlight sitting in your highway (excuse me, driveway)
  overnight? Have you ever moved an unregistered or uninsured car or trailer
  from one part of the driveway to another, or moved your car into the garage
  without putting on a seat belt?  After today's decision, these are all
  motor vehicle violations, punishable by fines of up to $100.00.  See 23
  V.S.A. § 1243(a) ("A motor vehicle . . . in use or at rest on a highway . .
  . during the period from 30 minutes after sunset to 30 minutes before
  sunrise, shall also be equipped with at least two lighted head lamps . . .
  .") (emphasis added); id. § 301 ("A person shall not operate a motor
  vehicle nor draw a trailer . . . on any highway unless such vehicle is
  registered . . . .") (emphasis added); id. § 800(a) ("No owner or operator
  of a motor vehicle . . . shall operate or permit the operation of the
  vehicle upon the highways of the state without having in effect an
  automobile liability policy . . . . .") (emphasis added); id. § 1259(a)
  ("The operator of a motor vehicle shall be subject to a penalty . . . if
  any person . . . is not restrained by the safety belt system while the
  motor vehicle is in motion on a public highway.") (emphasis added).  A
  reminder to sports fans: remove those "Red Sox Fan Parking Only" signs from
  your garage doors.  See id. § 1027(a) ("No person shall place, maintain or
  display upon or in view of any highway any unauthorized sign . . . which is
  an imitation of or resembles an official traffic-control device . . . .")
  (emphasis added).   And don't forget to yield to cattle, sheep, or goats
  being herded across your driveway.  See id. § 1127(b) ("The operator of a
  motor vehicle shall yield to any cattle, sheep or goats which are being
  herded on or across a highway.") (emphasis added).

       The majority concludes that a private, residential driveway is in fact
  a "highway" for purposes of the motor vehicle title.  Specifically, the
  majority holds that the State may revoke defendant's license on the ground
  that he drove from the top of his driveway to his house while under the
  influence of intoxicating liquor.  See 23 V.S.A. § 1201(a)(2).  Defendant
  maintained, and the court found, that he had not driven on the road.  A
  friend drove defendant and his truck to the top of the driveway and then
  left; defendant drove the rest of the way to the house.  This behavior,
  according to the majority, violated § 1201(a)(2), which prohibits operating
  "any vehicle on a highway" while under the influence of intoxicating

       The majority buries the statutory definition of "highway" in a
  footnote.  In view of the extraordinary holding in this case, our citizens
  deserve to be fully apprised of the activities that can now be conducted on
  property that heretofore, in my opinion, every Vermonter believed to be
  private.  23 V.S.A. § 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 added.)  Vermonters will be unpleasantly surprised to learn
  that, according to this Court, perfect strangers may drive in and through
  their private driveways with impunity.  The enjoyment of your home and
  lands should be greatly enhanced by the "general circulation" of the cars
  and trucks that may now travel freely on your driveway.


       This decision not only flies in the face of common sense, it violates
  almost every canon of statutory construction that could be brought to bear
  in this case.  Interpretation of this provision could begin and end with
  its plain language: the DUI statute is explicitly limited to operation "of
  any vehicle on a highway,"  id. § 1201(a) (emphasis added), and highways
  are defined as places "open . . . to public or general circulation of
  vehicles."  Id. § 4(13).  I would agree that this provision is open to a
  broad construction; large parking lots open to the public, see State v.
  Jarvis, 145 Vt. 8, 13, 482 A.2d 65, 68 (1984), and a privately owned road
  that is maintained by the town and provides access to a school and a
  convenience store, see State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632,
  635 (1989), are without question "open . . . to . . . general circulation
  of vehicles."  23 V.S.A. § 4(13).  Before today's decision, however, anyone
  who drives a vehicle would have recognized a difference between a
  regularly-travelled road or parking lot and a private driveway used by the
  residents of a single-family home and their guests and invitees.  The
  restricted and infrequent traffic on a typical residential driveway does
  not permit the conclusion that such a driveway is a public highway open to
  the general circulation of vehicles.

       The majority tries to obliterate this distinction by assuming "facts"
  about driveways, none of which appear in the record: that delivery vehicles
  pull in to them to make unannounced visits, travellers use them to pull off
  the road and turn around, and strangers drive up them to ask directions.
  This attempt to make private driveways seem as busy as interstates is
  unconvincing.  Even assuming that we can and should take judicial notice of
  these "facts," on the whole they prove little.  Granted, once in a while
  uninvited visitors trundle up a driveway, looking to make a sale or get
  directions or merely to turn around.  But the statute defines "highway" as
  a place "open . . . to public or general circulation of vehicles," id.
  (emphasis added), not as a place that sees an occasional car.  A private
  driveway is primarily used by residents and invited guests, and in fact
  receives very little traffic of any kind.  The majority cannot, and does
  not attempt to, justify the logical leap from "[d]riveways . . . are only
  semiprivate," because they are used by some uninvited vehicles, to
  "driveway[s] . . . [are] open to the general circulation of vehicles." 
  Ante, at 2.

       Assuming, however, that the plain language is unclear, "[i]n
  construing [a] statute, our goal is to effect legislative intent."  State
  v. Galusha, ___ Vt. ___, ___, 665 A.2d 595, 596 (1995).  The majority makes
  no attempt to discern whether the Legislature intended to regulate vehicle
  operation on private driveways.  Again, this is no surprise -- the intent
  of the Legislature is obvious from the language of the statute, which
  governs operation of a vehicle "on a highway." 23 V.S.A. § 1201(a)
  (emphasis added).  The Legislature was free to enact a statute of broader
  application, one that simply criminalized the operation of a motor vehicle
  under the influence of intoxicating liquor, without describing where the
  offense must be committed.(FN1)  In states that have such laws, the courts
  have held that they proscribe conduct without limitation


  as to location.  See, e.g., State v. Miller, 204 N.W.2d 834, 837 (Iowa
  1973) (statute penalizing operating motor vehicle under influence of
  alcoholic beverages not limited to operation on public highway); State v.
  Allen, 431 S.E.2d 563, 564 (S.C. 1993) (same); cf. State v. Magner, 376 A.2d 1333, 1333-34 (N.J. Super. Ct. App. Div. 1977) (failure of legislature
  to include language limiting offense to public streets and highways
  indicates that intent to deal with drunken driving irrespective of where it
  takes place).  In Vermont the Legislature chose to penalize drunk driving
  only in "place[s] open . . . to public or general circulation of vehicles." 
  23 V.S.A. § 4(13).  The majority evidently prefers a broader prohibition,
  but it cannot explain why the Legislature would use the word "highway" when
  it intended the statute to apply without geographical limitation.  Instead,
  it resolves the difficulty by defining "highway" so broadly that it becomes
  meaningless, ignoring as well the rule that statutes should not be
  interpreted to render a provision superfluous or unnecessary.  See Ratzlaf
  v. United States, 510 U.S. 135, 140-41 (1994) (judges should hesitate to
  treat statutory provisions as surplusage, especially when words describe
  element of criminal offense).

       Also disregarded by the majority is the principle that an individual
  statutory provision should be read by reference to the whole act.  See John
  Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95
  (1993).  The majority makes the surprising claim that, "[o]utside the DUI
  context, the term `highway' remains unmodified by case law."  Ante, at 2. 
  I am mystified by this claim, as the statutory definition of "highway"
  applies throughout the motor vehicle code.  See 23 V.S.A. § 4.  The
  majority appears to be following a new rule of statutory construction:
  definitions that are said to apply throughout a title or chapter may in
  fact change meaning from one provision to another.  Peculiar as this rule
  is, the majority needs it, because defining "highway" to include private
  residential driveways makes no sense in the context of the entire motor
  vehicle title.  Even a casual reader of those statutes must quickly realize
  that the Legislature knew the difference between a highway and a driveway,
  and did not intend references to the former to include the latter. See,
  e.g., id. § 1031(c) ("This subsection shall not be construed as prohibiting
  the crossing of the center line in making a left turn into or from an
  intersecting highway, an alley, private road or driveway when authorized.")
  (emphasis added); id. § 1049 ("The driver of a vehicle about to enter or
  cross a highway from an alley, building, private road or driveway shall
  yield the right of way to all vehicles approaching on the highway.")
  (emphasis added).  Indeed, the majority's interpretation of "highway"
  yields numerous absurd results -- an outcome we normally strive to avoid. 
  See State v. Quinn, ___ Vt. ___, ___, 675 A.2d 1336, 1338 (1996) ("if
  possible, we must avoid construing statutory language in a way that
  produces an irrational result"; "we do not [construe penal statutes] to . .
  . reach an absurd result").

       Looking at this provision in context, and considering the likely
  intent of the Legislature, I conclude that the definition of "highway"
  cannot be reasonably interpreted to include a private residential driveway
  of the type involved in this case.  But even if the majority could support
  the broader construction that it favors, I would still vote to reverse. 
  "Penal statutes . . . are to be strictly construed in a manner favorable to
  the accused."(FN2)  State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004
  (1989); see also Quinn, ___ Vt. at ___, 675 A.2d  at 1338 (Allen, C.J.,
  dissenting) (where, after examination of language, structure, legislative
  history and motivating policies, reasonable doubt exists regarding intended
  meaning of penal statute, rule of lenity should be applied).  At best, this
  statute is ambiguous; neither defendant nor any other Vermont 


  driver was on notice before this decision that private, residential
  driveways are in fact highways for purposes of motor vehicle offenses.  The
  rule of lenity should apply in this case, to protect defendant from "`the
  creation of criminal offenses outside the contemplation of the legislature
  under the guise of "judicial construction."'"  Oliver, 151 Vt. at 629, 563 A.2d  at 1004 (quoting People v. Vercelletto, 514 N.Y.S.2d 177, 178 (Ulster
  County Ct. 1987)).

       I would reverse the district court's decision and reinstate
  defendant's license.  I am authorized to state that Justice Gibson joins me
  in this dissent.

                              BY THE COURT:

                              Frederic W. Allen, Chief Justice
Ernest W. Gibson III, Associate Justice
                              John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice _______________________________________
                              James L. Morse, Associate Justice
À-Ù   Publish

À-Ù   Do Not Publish


FN1.  The legislature has done this in other sections of the motor
  vehicle code.  For example, a license is required to operate a motor
  vehicle, not to operate a motor vehicle on a highway.  23 V.S.A. § 601(a)
  ("A resident who intends to operate motor vehicles shall procure a proper
  license so to do.").  Obedience to law enforcement officers is also
  required, regardless of location.  23 V.S.A. § 1012(a) ("A person, while
  operating or in charge of a motor vehicle shall, upon request by a law
  enforcement officer . . . give his or her name and address . . . . A person
  operating a motor vehicle shall promptly and carefully stop when signalled
  to stop by an enforcement officer . . . ."); see State v. Sutphin, 159 Vt.
  9, 19, 614 A.2d 792, ___ (1992) (Johnson, J., dissenting) (defendant's
  attention to police officer's requests implicitly, if not explicitly,
  compelled by statute).

FN2.  Although defendant suffered only the civil penalty of license
  suspension, 23 V.S.A. § 1201 is a penal statute.  If defendant's conduct
  violated the statute, he is open to criminal prosecution, and may be fined
  and/or imprisoned if convicted.  See 23 V.S.A. § 1210.

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