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OWI, § 346.63(1)(am) – “Operating” – Merely Sitting in Parked Car, Engine Running, Not Enough

Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, reversing unpublished decision
For Haanstad: John M. Gerlach

Issue: Whether sitting in the driver’s seat of a running, parked car is, without more, “operating” a motor vehicle within § 346.63.

Holding:

¶15 The term “operate” is defined in § 346.63(3)(b), which reads: “‘Operate'” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”¶16 The court of appeals’ conclusion directly contradicts the plain meaning of the statute. According to the explicit words of the statute, in order to “operate” a motor vehicle, the statute requires that the person physically manipulate or activate any of the controls of the motor vehicle necessary to put it in motion. The Village does not dispute, and the court of appeals concluded, that Haanstad never physically manipulated or activated any of the vehicle’s controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. Haanstad simply sat in the driver’s seat with her feet and body pointed towards the passenger seat. Haanstad did not “operate” a motor vehicle under the statute’s plain meaning.

County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980) distinguished:

¶19 In other words, the Proegler court dealt with facts where there was no question that the defendant had started the engine, thereby “activating” the controls necessary to put the vehicle in motion. The real issue in Proegler was whether the statute should be interpreted to penalize one who, having already started the engine, has the “brains to get off the road.” Id. at 626-27.

The holding, in other words, is relatively narrow, ¶21: “In contrast, the evidence here is undisputed that Haanstad did not drive the car to the point where the officer found her behind the wheel. … There is no dispute: Haanstad never touched the controls of the vehicle. As the circuit court judge so aptly stated, ‘if she is guilty, she is guilty of sitting while intoxicated.’” And:

¶23 In the present case, Haanstad was merely sitting in the driver’s seat of a parked vehicle. Although the engine was running, the uncontested evidence shows that Haanstad was not the person who left the engine running. She never physically manipulated or activated the controls necessary to put the vehicle in motion. In addition, the present case is distinguishable from Proegler, as there is no circumstantial evidence that Haanstad “recently” operated the vehicle. In contrast, there is uncontested evidence demonstrating that Haanstad never touched the driving controls while sitting in the driver’s seat, and that Satterthwaite was the individual who recently operated the vehicle.

It also remains true that immobility of the vehicle is “immaterial, because the physical manipulation or activation of the controls for purposes of the definition of ‘operate’ did not necessarily require that the vehicle be moving,” ¶22 n. 5, citing with approval, State v. Modory, 204 Wis. 2d 538, 544, 555 N.W.2d 399 (Ct. App. 1996).

 

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