State v. Eckhardt (95-484); 165 Vt 606; 686 A.2d 104
[Opinion Filed 27-Aug-1996]
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 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.