Tuesday, March 01, 2011

DUI Appeal of the Day (DAD) Driver in Car Being Towed is Guilty of Operating

Just when i thought I had seen everything, along comes Ehrp v. Iowa DOT, Slip Copy, 2011 WL 662663 (Table) (Iowa App.). There, the defendant appealed his conviciton and suspension based on one issue:

Was Ehrp “operating” his pickup truck when he was behind the wheel while the truck was being pulled backwards out of a ditch by a tractor?
As a police officer arrived at the scene, he observed a vehicle being pulled backwards out of a ditch by a tractor. The defendant jumped out of the drivers seat of the vehicle when the cop arrived. The defendant's sister, who was also at the scene, claimed to have been operating the vehicle when it went into the ditch. The keys were in the ignition of the pickup, but Deputy Bruscher could not recall whether the pickup's engine was running when it was being pulled out of the ditch by the tractor. A neighbor was operating the tractor..

On appeal, the court found that the defendant was operating the vehicle when he sat inside the driver's seat at the time of the tow:

We do not find capability of vehicle movement to be an essential element of ‘operating.’ Thus the disablement of Murray's vehicle does not place his conduct beyond the scope of the statute. OWI statutes attempt to deter intoxicated individuals from getting into their vehicles except as passengers.

In support of its decision, the court cited to numerous other decisions:

Additionally, cases from other jurisdictions have repeatedly decided that a person who is behind the wheel of a vehicle that is being towed or pushed by another vehicle is “in control” of his or her vehicle for purposes of the OWI laws. See generally James O. Pearson, Jr., Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A.LR.3d 7, 25-26 (1979) (“ § 6[cj Vehicle in motion-By being towed or pushed by another vehicle”); see also Williams v. State, 884 P.2d 167, 168-69 (Alaska Ct.App.1994) (intoxicated person steering a car being towed by another car was “in physical control” of the vehicle), abrogated on other grounds by State v. Coon, 974 P.2d 386, 391 (Alaska 1999); Bridgers v. State, AAA S.E.2d 330, 330 (Ga.Ct.App .1994) (intoxicated person steering a vehicle as it as being towed was “in control” of the vehicle); State v. Larson, 479 N.W.2d 472, 474 (N.D.1992) (intoxicated individual steering a bus as it was being pushed by another vehicle was “driving” the bus); State v. Keeton, 600 N.E.2d 752, 755-56 (Ohio Ct.App.1991) (intoxicated person steering a pickup as it was being towed out of a ditch and down the road was “operating” that vehicle); State v. Dean, 733 P.2d 105, 105-06 (Or.Ct.App.1987) (intoxicated person steering and braking a towed vehicle was “in actual physical control” of that vehicle); Hester v. State, 270 S.W.2d 321, 321 (Tenn.1954) (intoxicated person steering his vehicle that was being pushed by another car was “in physical control” of his vehicle); Chamberlain v. State, 294 S.W.2d 719, 720 (Tex.Crim.App.1956) (intoxicated person steering a car that was being pushed by another car was “operating” the vehicle). But see State v. Derby, 607 A.2d 1068, 1071-72 (N.J.Super. Ct. Law Div.1992) (intoxicated person who was behind the steering wheel of a vehicle under tow that had no engine was “clearly in physical control” but was not “operating” the engineless vehicle so as to sustain an OWI conviction).
The dissent stated as follows:
Although the state has “broad discretion,” to pass criminal laws, Murray, 539 N.W.2d at 369, some common sense surely tempers the scope of the interpretation of those laws absent a legislative purpose of strict criminal liability. The term “operate” in sections 321J.2 and 321J.6 must have some connection to the goal of protecting the public. I see the limits of the meaning “to operate” in the situation here.
Will wonders never cease?

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