People v. Swain

959 P.2d 426, 1998 Colo. J. C.A.R. 2671, 1998 Colo. LEXIS 423, 1998 WL 281926

• Court: Supreme Court of Colorado
• Decided: May 26, 1998
• Docket: 97SC16
• Status: Published

Opinions

Justice MARTINEZ

delivered the Opinion of the Court.

We granted certiorari to review the La Plata County District Court’s order in People v. Swain, No. 96CR152 (Colo.Dist.Ct. Dec. 9, 1996).¹ The district court reversed Robert Swain’s convictions for driving while ability impaired (DWAI) and driving without a driver’s license and remanded for a new trial to the La Plata County Court. The district court concluded that the county court erroneously instructed the jury that the term “drove,” within the meaning of section 42-4-1301(1), 17 C.R.S. (1996 Supp.), is defined as “actual physical control” of a vehicle.² Based on our analysis in Brewer v. Motor Vehicle Division, Department of Revenue, 720 P.2d 564 (Colo.1986), we hold that proof of “actual physical control” of a vehicle is sufficient to establish that Swain “drove” a vehicle within the meaning of section 42-4-1301(1). Accordingly, we reverse the decision of the district court and remand the case to the district court with directions to reinstate the judgments of conviction and sentences imposed for DWAI and driving without a driver’s license.

I.

On the evening of September 13, 1995, Swain met some friends in Durango, Colorado for dinner. The meal lasted approximately one hour, during which Swain consumed two beers. After dinner, Swain and his friends walked around downtown Durango to see if “there was anything happening.” They agreed to have a beer at a bar located on Main Street and upon their arrival, ordered beers and began to drink. Sometime between 9:00 and 10:00 p.m., Swain and his friends decided to leave the bar because they were being soaked by thrown beer. As Swain and his friends resumed walking around downtown Durango, Swain felt tired and informed his friends that he had to drive to New Mexico that night because he had a “get together” with friends in Farmington the following day.

At approximately 10:30 p.m., Swain got into his white pick-up truck and proceeded to drive out of Durango. Some time later, Swain got lost and had to backtrack to Hesperus, Colorado in order to find Highway 140 to Farmington. At an unknown time during the night of September 13,1995, or the early morning of September 14, 1995, Swain felt sleepy, pulled his pick-up truck over to the southbound side of Highway 140, and fell asleep.³

On September 14, 1995, at approximately 2:00 a.m., La Plata County Sheriffs Deputies Todd Hitti- and Shelly Williams noticed a white pick-up truck parked one to three feet off of Highway 140- in the grass. Deputy Hitti pulled the patrol ear over to the side of the highway and radioed central dispatch that they were investigating an “abandoned vehicle.” As the deputies exited their patrol car, they both heard loud music coming from the truck.

The deputies approached the truck and found Swain lying, either asleep or pássed out, in the front seat. Swain was curled in a fetal position with his feet near the driver’s side door and his head resting towards the passenger’s side door. The keys were in the ignition and the truck’s radio was playing.⁴ The engine was not running and no evidence was introduced concerning whether the truck’s headlights were on.

Deputy Hitti knocked on the window of the truck three times before Swain responded. Swain sat up, wiped his face, and rolled down the window. Deputy Hitti requested Swain’s vehicle registration, driver’s license, and proof of insurance. After fumbling through some leaflets, Swain was able to produce his proof of insurance but informed Deputy Hitti that he was unable to locate his driver’s license and vehicle registration. Both deputies smelled an odor of alcohol on Swain’s breath, noticed that his speech was slow and slurred, his eyes were bloodshot, and his clothes were dirty and in disorder. The deputies also observed a twelve-pack of beer on the floor of the truck, with two cans opened.

Swain told Deputy Hitti that he was on his way to Farmington from Norwood, Colorado, and that he had been drinking earlier in Durango. After providing his proof of insurance to Deputy Hitti, Swain lay back down on the seat. Deputy Hitti returned to the patrol car and radioed central dispatch to check for any outstanding warrants. As the deputies were waiting for the results of the warrants check, they conducted a DUI investigation. Swain failed a number of voluntary roadside sobriety tests and refused to submit to any form of chemical testing. Consequently, Swain was arrested and charged with driving under the influence of alcohol pursuant to section 42-4-1301(l)(a), 11 C.R.S. (1997),⁵ and driving without a driver’s license pursuant to section 42-2-101(5), 11 C.R.S. (1997).⁶

The case proceeded to jury trial on May 23, 1996, in La Plata County Court. At the close of all evidence, the People submitted the following jury instruction, over the objection of Swain, based upon case law applicable to the express consent provisions of section 42-4-1301(7)(a), 11 C.R.S. (1997): ⁷

In Colorado, a person “drove” if he or she was in actual physical control of a motor vehicle.

“Actual Physical Control” is present when a person exercises bodily influence or direction over a motor vehicle; which is to be decided by a totality of the circumstances.

Factors you may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:

A. Where the vehicle was found;

B. Where in the vehicle the person was found;

C. Whether or not the keys were in the motor vehicle’s ignition;

D. Whether or not the motor vehicle was running;

E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.

No one factor listed above definitively decides whether or not a person was in actual physical control of a motor vehicle.

The jury found Swain guilty of DWAI,⁸ a lesser included offense of DUI, and driving without a driver’s license. The trial judge sentenced Swain to ten days in the La Plata County Jail, and suspended the sentence on the condition that Swain pay $388.00 in fines and court costs, complete twenty-four hours of useful public service, obtain a drug/alcohol evaluation, and follow all treatment recommendations.

On appeal to the La Plata County District Court, Swain asserted in his notice of appeal that the trial court erroneously instructed the jury that “drove,” an element of DUI, meant “actual physical control.”⁹ Without the benefit of briefs from either party, the district court ruled that the definition of “drove” as “actual physical control” of a vehicle is a civil concept applicable to driver’s license revocation cases only and not criminal prosecutions. The court observed that “[w]hile the express consent law may apply to anyone who is a driver, the criminal inquiry is ‘did the defendant drive a motor vehicle’ not ‘did the defendant have the status of “driver.” ’ ” The district court concluded that the Colorado DUI statute only criminalizes the act of “driving” a vehicle under the influence and therefore “some movement of the vehicle is generally required.” The district court reversed both convictions and remanded the cause for a new trial.

II.

The People contend that the district court erroneously relied on a civil/criminal law distinction in concluding that this court’s analysis in Brewer v. Motor Vehicle Division, Department of Revenue, 720 P.2d 564 (Colo.1986), was inapplicable to the DUI context.¹⁰ According to the People, the term “driver,” as defined in section 42-1-102(27), applies to both the civil and criminal portions of Title 42. Therefore, the People contend that the district court’s conclusion that the term “drove” requires “some movement of the vehicle,” is erroneous, and that the term instead requires “actual physical control” of a vehicle. We agree.

Title 42, Part 13 of Article 4 sets forth vehicle and traffic regulations involving alcohol and drug offenses. In Colorado, it is a misdemeanor for a person to “drive” a vehicle while under the influence or while impaired by the use of alcohol, drugs, or both. See 42-4-1301(l)(a)-(b), 11 C.R.S. (1997) (“DUI statute”). By enacting this legislation, the General Assembly sought to foster public safety by discouraging individuals from driving while under the influence of alcohol. See Noe v. Dolan, 197 Colo. 32, 37, 589 P.2d 483, 486 (1979) (recognizing that “the health, safety and welfare of [citizens] ... are endangered by those who drive while under the influence of intoxicating liquors”); see also People v. Rister, 803 P.2d 483, 487 (Colo.1990) (recognizing that “[i]t is beyond debate that drunken driving is a serious problem, and that the state has a substantial interest in preventing the loss of life and damage to property caused by drunk drivers”).

In construing a statute, the intent of the legislature is to be ascertained and given effect whenever possible. See Walgreen Co. v. Charnes, 819 P.2d 1039, 1044 (Colo.1991). The General Assembly may furnish its own definitions of words and phrases in order to guide and direct judicial determination of the intendments of the legislation although such definitions may differ from ordinary usage. If the General Assembly has defined a statutory term, a court must apply that definition. See R.E.N. v. City of Colo. Springs, 823 P.2d 1359, 1364 (Colo.1992) (recognizing that “[w]hen the legislature defines a term in a statute, statutory construction requires that the term be given its statutory meaning”); see also Norman J. Singer, Sutherland Statutory Construction 47.07 (5th ed. 1992) (“As a rule, a definition which declares what a term means is binding on the court.”).

Although the terms “drive” and “drove” are not statutorily defined in Title 42, a “driver” is defined by section 42-1-102(27) as a person “who drives or is in actual physical control of a vehicle.” 42-1-102(27), 11 C.R.S. (1997). Relying on our prior decision in Brewer, the People assert that it logically follows that the term “drove,” an element of the criminal DUI statute, means being in “actual physical control” of a vehicle. See 42-4-1301(1), 11 C.R.S. (1997).

In Brewer, we examined the meaning of the term “drove” in the context of a driver’s license revocation proceeding under Colorado’s express consent statute. See 42-2-122.1(l)(a), 17 C.R.S. (1984).¹¹ We held that an intoxicated person found asleep behind the wheel of a car parked in the middle of a street with the engine running and lights on was “driving” a vehicle and was therefore subject to license revocation proceedings for driving while intoxicated. In reaching our decision, we applied the definition of the term “driver” contained in section 42-1-102(27) to the term “drove” in section 42-2-122.1. See Brewer, 720 P.2d at 566-67. We determined that a person who exercised “actual physical control” over a motor vehicle “drove” the vehicle within the meaning of the express consent statute. See id. at 567; see also Warman, 763 P.2d at 561-62 (intoxicated operator found asleep or unconscious behind the wheel of a stopped vehicle, with engine running and fights on, had actual physical control of the vehicle); Smith v. Charnes, 728 P.2d 1287, 1292 (Colo.1986) (same).

Generally, “ambiguity” exists when a statute is susceptible to alternate constructions. See Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298, 1302 (Colo.1996) (recognizing that “statutory language is ambiguous and therefore susceptible of alternate constructions”). Although Brewer did not expressly conclude that the phrase “drove a vehicle” was ambiguous, it did recognize that “other constructions of the phrase ‘drove a vehicle’ may be equally plausible.” See Brewer, 720 P.2d at 567. Despite this recognition, Brewer resolved the definition of the term “drove” for purposes of the DUI statute. See id. (“Proof of ... actual physical control was sufficient to establish that the plaintiff drove.”). In so doing, Brewer also implicitly interpreted the terms “driving” and “actual physical control” as synonymous.¹² See id. at 566-67.

In the twelve years since Brewer was decided, the General Assembly has revisited section 42-4-1301 on three separate occasions, but has neither altered the language nor indicated in any other manner that our analysis in Brewer is contrary to legislative intent. See Ch. 256, sec. 12, 42-4-1301, 1997 Colo. Sess. Laws 1467-68((2)(a.5) added and (6) and (8) amended); Ch. 199, sec. 17, 42-4-1301, 1995 Colo. Sess. Laws 956-58, ((9)(a) and (9)(b) amended); Ch. 337, sec. 1, 42-4-1301, 1994 Colo. Sess. Laws 2376-2390 (amended and entire title relocated). Under an established rule of statutory construction, the legislature is presumed, by virtue of its action in amending a previously construed statute without changing the portion that was construed, to have accepted and ratified the prior judicial construction. See Vaughan v. McMinn, 945 P.2d 404, 409 (Colo.1997) (“The legislature is presumed to be aware of the judicial precedent in an area of law when it legislates in that area.”); Tompkins v. DeLeon, 197 Colo. 569, 571, 595 P.2d 242, 243-44 (1979) (“When the legislature reenacts or amends a statute and does not change a section previously interpreted by settled judicial construction, it is presumed that it agrees with judicial construction of the statute.”). We can therefore reasonably presume that the legislature agrees with Brewer’s construction of the term “drove” 'to mean “actual physical control.” Our analysis in Brewer thus compels the conclusion that the Genera! Assembly defined the term “drive” for purposes of the DUI statute to mean “actual physical control” of a vehicle.¹³

We are mindful of the general proposition that “criminal statutes are to be strictly construed in favor of a defendant.” People v. Hale, 654 P.2d 849, 850 (Colo.1982). However, courts may not rely on this rule of lenity if no ambiguity exists in a statutory scheme defining a substantive criminal offense. See People v. Leske, 1998 WL 177969, at * 9 (Colo. Apr.13,1998); see also Wilczynski v. People, 891 P.2d 998, 1001 (Colo.1995) (use of rule of lenity for statutory construction is inappropriate absent statutory ambiguity); People v. Harris, 914 P.2d 425, 430 (Colo.App.1995) (“The rule of lenity may be employed only to resolve an unyielding statutory ambiguity, not to create one.”).

Here, because of Brewer’s judicial construction of the term “drove” to mean “actual physical control” and the legislature’s subsequent sub silentio affirmation, no ambiguity exists in the statute regarding the definition of the term “drove.” Accordingly, the rule of lenity is not applicable and cannot be the basis for reaching a result different from Brewer.

We therefore hold that the term “drive” in section 42 — 4-1301 means “actual physical control” of a vehicle.¹⁴

III.

In sum, we hold that section 42-4-1301 makes it unlawful for any person under the influence or while impaired by the use of alcohol, drugs, or both to be in “actual physical control” of a vehicle. Accordingly, the judgment of the district court is reversed, and the cause is remanded to the district court with directions to reinstate the judgments of conviction and sentences imposed for DWAI and driving without a driver’s license.

BENDEÉ, J., dissents, and SCOTT, J., joins in the dissent.

1 . The issue for certiorari was stated as follows: Whether a person in actual physical control of a motor vehicle is "driving” for purposes of Colorado's driving under the influence statute, section 42-4-1301(1), 17 C.R.S. (1996 Supp.).

2 .This opinion refers to the terms "drive” and "drove” as elements of the DUI and DWAI offenses. Section 42-4-1301(l)(a)-(b), ■ 11 C.R.S. (1997), states that it is illegal for a person to "drive” a vehicle while under the influence or while impaired by the use of alcohol, drugs, or both. Section 42-4 — 1301(1)(h)-(i), 11 C.R.S. (1997), permits the use of the term "drove” in charging one with DUI or DWAI. Accordingly, for purposes of this opinion, the terms are synonymous.

3 . The defendant testified that he had only drank two and a half beers that evening because in his past experiences, if he drank more than three beers, he would "go to sleep.”

4 . No evidence was presented as to whether the ignition switch was in the "on,” "auxiliary,” or "off” position.

5 . Section 42-4-1301(l)(a) provides in pertinent part:

It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of alcohol and one or more drugs, to drive a vehicle in this state.

6 . Section 42-2-101(5) provides in pertinent part: No person ... shall operate a motor vehicle upon a highway in this state without having such license or permit in such person’s immediate possession.

7 . See Caple v. Department of Revenue, 804 P.2d 873 (Colo.App.1990); Motor Vehicle Div. v. Warman, 763 P.2d 558 (Colo.1988); Colorado Div. of Revenue v. Lounsbury, 743 P.2d 23 (Colo.1987); Brewer, 720 P.2d 564 (Colo.1986). Section 42-4-1301(7)(a), 11 C.R.S. (1997), provides, in pertinent part:

(I) [A]ny person who drives any motor vehicle ... throughout this state shall be deemed to have expressed such person's consent to ... (II) the taking and completing of, any test or tests of such person’s breath or blood for the purpose of determining the alcoholic content ... when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle [under the influence or while impaired by the use of alcohol, drugs, or both],

8 .Section 42-4 — 1301(l)(b), 11 C.R.S. (1997), provides, in pertinent part:

It is a misdemeanor for anybody who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle in this state.

9 . Although Swain filed a timely notice of appeal, he did not file an opening brief with the district court.

10 . The district court relied on People v. Wood, 767 P.2d 790 (Colo.App.1988), a case involving a criminal conviction of a defendant for driving while his driver’s license was revoked, to support its criminal/civil distinction. In Wood, the court of appeals reversed Wood’s conviction, holding that the defendant, who was prohibited by an order revoking his driver’s license from driving on a public highway, could not be convicted of driving while his driver’s license was revoked because he was driving in a private parking lot. See id. at 791-92.

In dicta, the court of appeals discussed the legislature's newly-expanded definition of "driver,” to include all drivers in the state. See id. at 792 (discussing the definition of "driver” contained in section 42-1-102(22), which was later relocated to section 42-1-102(27)). In dismissing the amended definition as irrelevant to its holding, the court of appeals stated that "[a]s to the offense at issue here, the pertinent inquiry [still] concerns whether defendant was driving or operating a vehicle, rather than whether he had the status of being a driver.” Wood, 767 P.2d at 792. This discussion was unnecessary to the court’s holding, which was based on the notion that Wood could not be charged with driving on the highways of the state when he was only observed driving in a private parking lot. See id. at 791-92. Furthermore, Wood admitted that he was driving at the time of the alleged offense. See id. at 791. However, to the extent that the court of appeals' opinion relied on the distinction between "driving” and "driver” to reach its conclusion, it is overruled.

11 . This statute was revised and relocated to section 42-2-126(2)(a)(I), 11 C.R.S. (1997), and provides, in pertinent part:

The Department shall revoke the license of any person upon its determination that the person: Drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person's blood or breath [was over the specified legal limit].

12 . We note that the word “or” appears between the terms "driving” and "actual physical control." See 42-1-102(27), 11 C.R.S. (1997). Generally, the word "or” is a disjunctive particle that denotes an alternative; however, the word "or” may also be utilized as a "coordinate conjunction introducing a synonymous word or phrase or it may join different terms expressing the same idea or thing and it may be used as a particle to connect two words meaning the same thing.” State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511, 514 (1993); Martin v. Carolina Water Serv., Inc., 280 S.C. 235, 312 S.E.2d 556, 558 (1984); see also State v. Spindel, 24 N.J. 395, 132 A.2d 291 (1957); Bowles v. Weiner, 6 F.R.D. 540 (E.D.Mich.1947); Blumenthal v. Berkshire Life Ins. Co., 134 Mich. 216, 96 N.W. 17 (1903).

13 . We recognize that Colorado commentators rely on Brewer and its progeny to define the term “driving” within the Colorado DUI criminal context as "actual physical control.” See Alexander G. Topakas, A Young Lawyer's Guide to DUI Suppression Motions, 25 Colo. Law. 63 (April 1996) (“‘Driving’ is defined as actual physical control of a motor vehicle”); Scotty P. Krob, Pretrial Motions to Suppress or Dismiss, Colorado DUI Bench Book III, 18-20 (Pat Furman Ed., 1995) ("A defendant is deemed to be ‘driving’ a motor vehicle under the DUI statute whenever he is in actual physical control of the vehicle, regardless of whether the vehicle is on a public highway and regardless of whether the vehicle is actually moving or moving under its own pow- . er“); see also Colorado District Attorneys Council, DUI/DWAI Manual: A Guidebook for Colorado Prosecutors 6: 3-4 (1990).

14 . The jury determined, pursuant to instructions, that Swain was in actual physical control of the vehicle. We have not been asked to review the sufficiency of the evidence supporting that determination. We, therefore, do not express an opinion as to whether Swain exercised "actual physical control” of a vehicle for purposes of the DUI statute.