The meaning of ‘driving’ plays role in DWI appeal

The Director of Revenue (Director) appealed the judgment of the trial court in favor of Respondent (Defendant), which reinstated Defendant’s license because it found the Director failed to establish there was probable cause to believe the Defendant operated his vehicle while intoxicated.  The Director argued the trial court erroneously applied Missouri law regarding what constitutes “driving.”  

 The appellate court said that the Missouri Supreme Court has held that “the bright-line test to operate a car [is] caus[ing] its motor to function.  Once the key is in the ignition, and the engine is running, an officer may have probable cause to believe that the person sitting behind the steering wheel is operating the vehicle[,] even if that person is sleeping or unconscious.”  Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003).

In the case at hand, Defendant was found passed out in a running car, which was unusually parked.  Also, the trial court found the officer had probable cause to believe the Defendant was intoxicated when found.  The appellate court found that the trial court erroneously applied the law when, in order to find Defendant operated the vehicle while intoxicated, the court indicated it required evidence of Defendant’s intoxication one hour prior, when Defendant drove the car.  Such a standard of proof renders the statute’s inclusion of the term “operation” meaningless, and we decline to interpret Section 577.041 in such manner.  The undisputed facts that Defendant was in the driver’s seat of a running car that he had driven there, along with the trial court’s finding that probable cause existed of Defendant’s intoxication at the time Sergeant Joseph Renkenmeyer encountered him, constitute substantial evidence supporting a finding of probable cause to believe Defendant operated the vehicle while intoxicated.”

It is important to note that in its footnote, the appellate court stated that although it made this decision today, nevertheless they can envision situations in which the circumstances of an intoxicated person seated in a running vehicle…will not merit a reasonable inference that the person was operating the vehicle while intoxicated.   Cox suggests that it is necessary to take into account more than the technical facts of the car running with an intoxicated peso inside in the determination of probable cause, and courts will continue to do so on a case-by-case basis.

The appellate court directed the trial court to sustain the revocation of Defendant’s license upon remand.   The opinion was written by Justice Gary M. Gaertner, Jr., with Presiding Justice Kurt S. Odenwald and Justice Colleen Dolan concurring.

 Attorneys for Appellant were Eric S. Schmitt and Daniel N. McPherson.  Attorney for Respondent were Denise L. Childress and Carl M. Ward.

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