State v. Cross

34 S.W.3d 175, 2000 Mo. App. LEXIS 1679, 2000 WL 1692297

• Court: Missouri Court of Appeals
• Decided: November 14, 2000
• Docket: WD 57145
• Status: Published

Opinions

PAUL M. SPINDEN, Chief Judge.

Charles Dale Cross appeals the circuit court’s judgment convicting him of the Class B misdemeanor of driving while intoxicated. He contends that the state’s evidence was insufficient to establish that he was driving while intoxicated. He also contends that his arrest by Macon police officers was illegal because the alleged infraction occurred outside Macon’s jurisdictional limits and that the circuit court erred in admitting evidence of a breathalyzer test’s results because the state did not establish that it was competent evidence. We affirm the circuit court’s judgment.

The evidence established that on December 13, 1998, Macon police officer Christopher Bowzer was dispatched to investigate a report of a person slumped over in the seat of a car parked near U.S. 36 and Long Branch Road. Bowzer found the car parked with its engine running and its headlights on. The driver’s door was open, and Cross’ legs were hanging out and touching the ground. The car was parked outside Macon’s city limits, but, because he was concerned about Cross’ health, Bowzer continued to investigate. He found Cross asleep or unconscious, lying across the front seats. Bowzer could not arouse him. Bowzer radioed his dispatcher to summon a Highway Patrol trooper to the scene.

Before a trooper arrived, two other Macon police officers arrived to assist Bowzer. Bowzer testified that one of them, Officer Toal,¹ awakened Cross by shaking him and yelling at him. Cross then turned off the car’s headlights and engine and removed the keys from the ignition. He attempted to get out of his car, but Toal told him to remain in the car and took the keys from him. When Toal asked Cross how much he had to drink, Cross responded, “Not enough.”

Highway Patrol Trooper Kelley² arrived a brief time later and ordered Cross to get into his patrol car. Highway Patrol Trooper John Siecinski arrived moments later and spoke with the Macon officers and Trooper Kelley about what they had observed.

Siecinski testified that he noted a strong odor of intoxicants about Cross and saw two empty beer bottles in Cross’ car. He said that Cross’ eyes were watery, bloodshot and glassy, his speech was slurred, his balance was “uncertain, swaying ... [and] wobbling,” his walk was “swaying, staggering and slow,” and he swayed and was uncertain when asked to turn while walking. Siecinski said that he concluded from this that Cross was intoxicated, but, because of Cross’ condition and safety concerns, he decided not to conduct field sobriety tests.³ Siecinski formally arrested Cross for driving while intoxicated and took him to the Macon County sheriffs office where Cross consented to a breathalyzer test which indicated that his blood alcohol content was .182 percent.

Cross contends that the state’s evidence was not sufficient to establish that he was operating a motor vehicle as that term is used in § 577.010.1, RSMo 1994. The statute says, “A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.”⁴ In § 577.001.1, RSMo Cum.Supp.1999, the General Assembly defined “operates:” “As used in this chapter, the term ... ‘operates’ ... means physically driving or operating a motor vehicle.”⁵

The primary rule of statutory construction is to ascertain what the General Assembly intended and to give effect to that intent, and we ascertain that intent primarily by deeming the General Assembly to have intended the plain and ordinary meaning of the words it uses in a statute. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998). “Operating” is a broad term which the General Assembly did not define.⁶ We presume the General Assembly to have intended for us to give “operating” its plain and ordinary meaning. “ ‘Absent a statutory definition, the words used in the statute will be given their plain and ordinary meaning as derived from the dictionary.’ ” State v. Hibler, 5 S.W.3d 147, 149 (Mo. banc 1999) (quoting Columbia Athletic Club v. Director of Revenue, 961 S.W.2d 806, 809 (Mo. banc 1998)).

The dictionary defines “operate” as “to cause to function[.]” Webster’s Third New International Dictionary of the English Language Unabridged 1581 (1971). This lends itself to a broad understanding of the term, and indeed the Supreme Court has been broad in its treatment of the term. We note as an example — and strictly as an example of its acceptance of a broad definition of “operating” — that the Supreme Court, in construing the term in § 304.010 RSMo 1949, declared that “operating” encompassed:

“[A]ll acts ... fairly incidental to the ordinary course of [an automobile’s] operation, including not only the act of stopping en route for purposes reasonably associated with the transit but also all acts which, in point of time and circumstance, are reasonably connected with entering the vehicle at the point of departure and alighting therefrom at destination.”

Teters v. Kansas City Public Service Company, 300 S.W.2d 511, 516 (Mo.1957) (quoting Karnes v. Ace Cab Company, 287 S.W.2d 378, 380 (Mo.App.1956)).⁷ Indeed, “[f]or purposes of chapters 304 and 577, Missouri courts have repeatedly construed ‘operator’ broadly.” Gibbs v. National General Insurance Company, 938 S.W.2d 600, 604 (Mo.App.1997) (emphasis added).⁸

We make this point, not because a broad definition is necessary, but to assert that Cross’ actions clearly fit within the term. Nonetheless, it seems important to emphasize that, by not defining “operate,” the General Assembly prompts us to apply the plain and ordinary meaning of the term which can be — and has been — defined quite broadly. We must assume that the General Assembly wanted us to construe the word in its plain and ordinary sense rather than rewriting the statute to match our understanding of “context.”⁹ We certainly concur with the dissent that “[t]he Judiciary’s duty is not to write or re-write statutes.” Op. at 191. That is why we refrain from doing so.

Given this understanding, and without trying to articulate every activity that is included in “operating a motor vehicle,” we have no difficulty concluding that Cross’ case fits within the definition of § 577.001.1 and that the state presented sufficient evidence to establish his guilt beyond a reasonable doubt. When Bowzer first arrived, Cross was on the driver’s side of the car, lying across the front seats with the engine running. No one else was in the vehicle. Though circumstantial, the state’s evidence was sufficient for a fact finder reasonably to conclude that he had turned on the car’s engine. See Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo.App.1998).¹⁰ After officers aroused Cross, he immediately turned off the headlights and turned off the engine.¹¹ In the ordinary sense of the word, he was operating the car.¹²

Cross argues that, before the General Assembly amended § 577.001.1 in 1996, it defined “operating” as “physically driving or operating or being in actual physical control of a motor vehicle.” He notes that in many drunk driving cases involving a sleeping person the courts held the person to be operating under the “actual physical control” part of the definition. He argues first that he was not inside the ear — he was only partly in — and second that, because he was asleep and because the General Assembly deleted “actual physical control” from the definition, his case did not fit the definition of operating.

Indeed, the dissent uses this argument to assert that we are ignoring the General Assembly’s amendment of § 577.001.1— that our reading of the amended statute results in the amendment’s having no effect whatsoever. To the extent that this court has distinguished actual physical control from operating or driving, this argument fails. This court made this distinction in Wilcox v. Director of Revenue, 842 S.W.2d 240 (Mo.App.1992). The Wilcox court found that an intoxicated person who was asleep behind the steering wheel of a car parked in the traffic lane of a highway without the engine running was in actual physical control of the vehicle. After the General Assembly’s amendment of § 577.001.1, however, the individual in Wilcox could no longer have his driving privileges revoked for merely being in actual physical control of the vehicle.¹³ Hence, our reading of the amendment does recognize a change in the statute and does not, as the dissent accuses us of doing, redefine the term “operates” so as to encompass “nearly every type of conduct previously included in the phrase ‘actual physical control.’ ” Op. at 186.

We agree that our previous cases tended to emphasize “actual physical control” in cases involving a sleeping person. For example, in State v. Dey, 798 S.W.2d 210, 212 (Mo.App.1990), an intoxicated person was asleep behind the steering wheel of a parked vehicle with the engine running, and this court found that the individual was in actual physical control of the vehicle and was, therefore, “operating” a motor vehicle for the purposes of § 577.010.1. In reaching its conclusion, the court said, “[A] finding of actual physical control is not defeated by the fact that the driver is asleep.” Id. at 212. The Dey court, however, did not consider whether the individual’s actions would meet the “operating” part of the definition of § 577.001.1. The same is true for State v. O’Toole, 673 S.W.2d 25 (Mo. banc 1984); State v. Hoyt, 922 S.W.2d 443 (Mo.App.1996); and State v. Hollis, 800 S.W.2d 69 (Mo.App.1990).

While significantly changing the definition of “operating,” which we discuss infra, the General Assembly’s dropping “actual physical control” from its definition makes no difference in this particular case. This is because the evidence established that Cross was operating the motor vehicle.¹⁴ Cross was not only in actual physical control of the motor vehicle, he was operating the vehicle.¹⁵

First, Cross’ acts of being in a car with the engine running and then turning off the car’s engine and headlights constituted operation of his car. Second, even if this were not the case, the state presented ample circumstantial evidence to establish that he started the car’s engine and put it into operation. That operation was continuing when Officer Bowzer found him. That Cross was not causing the car to move — that it was parked — and that his legs were hanging out the door was of no consequence. He still was operating the car — that is, causing it to function. The state met its burden of showing beyond a reasonable doubt that Cross was operating the vehicle.

Of course, when the General Assembly amends a statute, we presume that it intended for the amendment to have some effect. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992), abrogation on other grounds recognized by Benton v. City of Rolla, 872 S.W.2d 882 (Mo.App.1994). Our holding in this case does nothing to disregard that rule of statutory construction. By amending § 577.001.1, the legislature made clear that it no longer wanted to punish individuals if they were found intoxicated and in actual physical control of the vehicle but not op-. erating or driving the vehicle.¹⁶ The legislature, however, continued to want to punish individuals if the evidence established that they were driving or operating a vehicle in an intoxicated condition.

A drunken individual in the driver’s seat of a motor vehicle with the engine running poses a danger to the driving public. Surely, this is just the reason why the General Assembly defined the terms “drive,” “driving,” “operates” or “operating” as “physically driving or operating a motor vehicle.” Operating a vehicle has to mean something separate and distinct from driving a motor vehicle. The General Assembly by using the term “operates” has said that it wants intoxicated individuals to stop and think before they even get into their vehicles. The General Assembly is specifically telling those individuals to not even consider operating the vehicle if you are intoxicated.

Moreover, because the legislature in its prior version of § 577.001.1 defined “operating” as “physically driving or operating or being in actual physical control of a motor vehicle” and because it used the disjunctive “or” in the definition, the legislature necessarily intended for each of the alternatives set forth to have distinctive meanings. State v. Wiles, 26 S.W.3d 436, 440-41 (Mo.App.2000).¹⁷ Indeed, courts on numerous occasions have recognized that “actual physical control” means something other than driving, see, e.g., State v. Hughes, 978 S.W.2d 24, 26 (Mo.App.1998); Dey, 798 S.W.2d at 212; therefore, necessarily, the General Assembly meant for “operating” to mean something other than driving.

Of course, “operating” overlays “driving.” ¹⁸ For instance, an individual who drives a motor vehicle is also operating it and is in actual physical control of it. The activities described by the term “driving” would be included among the activities described by the term “operating,” and the activities described by both of those terms would be included among the activities described by the term “actual physical control.”¹⁹ This diagram demonstrates the relationship of the three terms:

[[Image here]]

All of the acts that would constitute driving and operating would constitute actual physical control. The General Assembly removed from the definition those acts of actual physical control that did not constitute operating or driving. Thus, previous courts’ seizing upon the “actual physical control” portion of § 577.001.1’s definition should not prohibit us from giving full meaning to the terms “driving” and “operating” that remain in the statute.²⁰ Our conclusion does not rest on Cross’ being in actual physical control of the motor vehicle but on evidence that established Cross’ operation of the motor vehicle.

Cross also complains that the evidence did not establish that he was intoxicated at the time he was operating the vehicle. In support of his contention he relies on State v. Liebhart, 707 S.W.2d 427, 429 (Mo.App.1986), superseded by statute on other grounds as stated in State v. Wiles, 26 S.W.3d 436 (Mo.App.2000), in which the court noted:

There was a single set of tire tracks leading from the highway to the accident vehicle and appellant was sitting in the driver’s seat with the keys attempting to start the vehicle. There was damage to a fence and a mailbox along the accident route, as well as to the vehicle itself and appellant had sustained injuries. When the trooper arrived, there were no other vehicles or persons present nor was there any evidence that such others had been present on the scene prior to his arrival.

Id. at 429. The court found that although the evidence established that the defendant was operating the vehicle at the time of the accident, that he was intoxicated when the officer arrived, and that he had no access to intoxicating beverages after that time, the state failed to prove that the defendant was intoxicated at the time he was operating the vehicle. Id.

Unlike Liebhart, Cross was operating the vehicle when Macon police officers arrived. Sieeinski arrived shortly thereafter and concluded that Cross was intoxicated. Sufficient evidence established that Cross was intoxicated at the time he was operating the vehicle.

In his next point, Cross asserts that the circuit court erred in finding him guilty of violating § 577.010.1 because Macon police officers illegally arrested him. He argues that the officers were outside their jurisdiction when they seized his keys and held him until a Highway Patrol trooper arrived. Indeed, “ ‘seizure of the person’ under Fourth Amendment jurisprudence requires either the application of physical force, however slight, or where force is absent, submission to an officer’s ‘show of authority’ to restrain the subject’s liberty.” State v. Shahid, 813 S.W.2d 38, 40 (Mo.App.1991) (citing California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).

The evidence established that Cross submitted to the Macon officer’s show of authority. When Cross attempted to get out of his vehicle, a Macon officer told him to stay in the car and took the car’s key from him. Bowzer testified that they “took the keys from [Cross] to permit [sic] ... him from leaving the scene until the trooper arrived.” Clearly, Cross was not free to leave, and his liberty had been restrained. Cross was, in effect, under arrest.

The Macon police did not formally arrest Cross because they knew that they were outside their jurisdiction. Indeed, when a law enforcement officer leaves his territorial jurisdiction, his status is the same as a private citizen’s. State v. Devlin, 745 S.W.2d 850, 851 (Mo.App.1988); Settle v. State, 679 S.W.2d 310, 317 (Mo.App.1984), cert. denied, 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717 (1985). “A private citizen may arrest on a showing of the commission of a felony and reasonable grounds to suspect the arrested party, to prevent an affray or breach of the peace, and for a misdemeanor if authorized by statute.” Devlin, 745 S.W.2d at 851-52 (citing Settle, 679 S.W.2d at 317-18). This court’s Southern District has held that a private person lacks authority to arrest an individual for the Class B misdemeanor of driving while intoxicated. Forste v. Benton, 792 S.W.2d 910, 915 (Mo.App.1990). The Macon officers, therefore, had no authority to arrest Cross.

Cross, did not seek to suppress the officer’s testimony before trial, and he did not object to it at trial on constitutional grounds.²¹ “As a general rule, a constitutional claim must be raised at the earliest opportunity and preserved at each stage of the judicial process.” State v. Blankenship, 830 S.W.2d 1, 12 (Mo. banc 1992). Cross’ contention on appeal — that his unlawful arrest rendered the officers’ testi-raony inadmissible as “fruit of the poisonous tree” — comes too late.

Moreover, that Macon officers acted outside their jurisdiction does not preclude them from testifying about what they observed. State v. Overby, 432 S.W.2d 277, 279 (Mo.1968). “The validity or invalidity of the arrest, at the most, would affect the validity of a search in connection with the arrest.” Id. (applying U.S. Const., amends. IV and XIV, and Mo. Const., Art. I, § 15 (1945)).

In his final point, Cross contends that the circuit court erred in admitting evidence of the breathalyzer test results. He objected to the results on the grounds of hearsay and “[[improper foundation.” We agree that the circuit court erred in not sustaining his objections, but we do not discern any prejudice to Cross. Section 577.010.1 requires proof only that a defendant “operate[d] a motor vehicle while in an intoxicated or drugged condition.” It does not require a showing of any level of intoxication. This court’s Southern District observed:

“[T]he state is not required to produce results of chemical tests to prove intoxication.” State v. Ruark, 720 S.W.2d 453, 454 (Mo.App.1986). “ ‘Intoxication’ is a ‘physical condition’ usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.” Id.; see also [State u] Maggard, 906 S.W.2d [845,] 849 [(Mo.App.1995)]. “Whether a defendant is intoxicated may be proven by any witness who had a reasonable opportunity to observe him.” Maggard, 906 S.W.2d at 849.²²

State v. Teaster, 962 S.W.2d 429, 431 (Mo.App.1998). Trooper Siecinski’s observations were sufficient to establish Cross’ violation of § 577.010.1 beyond a reasonable doubt.

We affirm the circuit court’s judgment.

LOWENSTEIN, Judge, BRECKENRIDGE, Judge, SMART, Judge, EDWIN H. SMITH, Judge, and WILLIAM E. TURNAGE, Senior Judge, concur. ELLIS, Judge, dissents in separate opinion. LAURA DENVIR STITH, Judge, HOWARD, Judge, NEWTON, Judge and HOLLIGER concur in the dissenting opinion.

1 . The record does not provide Officer Toal's first name.

2 . Again, the record fails to give Trooper Kelley’s first name.

3 . Siecinski said that “the subject was well intoxicated, and the — the conditions of the roadway with the mud, the lack of shoulders that was there, it, to me, seemed like it was a safety issue. And ... there was no doubt in my mind that he was intoxicated.”

4 .The emphasis is in the original.

5 . The emphasis is in the original.

6 . The General Assembly merely defined the terms "operates” or “operating” as "operating a motor vehicle.” Section 577.001.1. While the definition restricts its application to motor vehicles, the General Assembly assumed that anyone reading the statute would know what operating means or could consult a dictionary.

7 .The dissent criticizes our citing the Teters’ definition of operating. We rely on the dictionary definition, and we cite Teters merely as an example. Nonetheless, the dissent reads Teters too narrowly. The dissent emphasizes that the "definition of ‘operating’ ... cannot be deemed applicable to the context of Section 577.010.” Op. at 187. The dissent asserts that "[t]he Teters Court specifically noted that cases interpreting ‘operating’ or ‘driving’ in the context of other statutory traffic regulations were not applicable to interpreting its meaning under § 304.010.” Slip op. at 7. Focusing, however, on the Teters court’s full analysis renders an opposite conclusion. The court said, "A defendant’s judgment in plaintiff’s case of McLarney v. Cary, Mo.App., 98 S.W.2d 144, 146, was affirmed because plaintiff was guilty of contributory negligence as a matter of law. The dictum therein, loc. cit. 146[3], that a motor vehicle while parked is not being operated and the operator need only exercise ordinary care, whether right or wrong, is not controlling here. The cases of Freed v. Mason, Mo.App., 137 S.W.2d 673, 676[4] and Jones v. Southwest Pump & Mach. Co., 227 Mo.App. 990, 60 S.W.2d 754, 757[4], involved other traffic regulations than the one under consideration; and, sufficient for the purposes here, Schorling v. United States Fidelity & Guaranty Co., 239 Mo.App. 431, 188 S.W.2d 369, 370[3], was an action on an accident insurance policy and the automobile was not on the highway.” 300 S.W.2d at 517. Looking at the cases that the Teters court chose not to rely on is important. It is evident that the court rejected them because of their specific facts, not because context somehow affected the proper interpretation of "operating.” Even if we were doing more than using Teters as an example of the Supreme Court’s acceptance of a broad definition of "operating” — and we are not- — nothing in Teters causes us to conclude that the court was confining its definition of "operate” to § 304.010 and that it did not intend for it to be applied in the interpretation of other statutes.

8 . The dissent criticizes our citing the Gibbs case because the Gibbs court said, "[T]he key to operation of a motor vehicle in Missouri is actual physical control.” 938 S.W.2d at 604. The dissent asserts "the definitions examined in Gibbs are inapplicable” to this case because "the Legislature specifically amended § 577.001.1 so that 'actual physical control,’ the ‘key’ to the definitions considered in Gibbs, no longer constitutes 'operating' under Chapter 577.” Op. at 188. First, we do not rely on Gibbs for its definitions but merely for the proposition that "courts have repeatedly construed [the term] ‘operator’ broadly.” 938 S.W.2d at 600. Second, although an intoxicated individual may no longer be punished for being only in "actual physical control” of a vehicle, the dissent surely is not suggesting that an intoxicated individual can drive and operate a vehicle without being in "actual physical control.” Hence, it remains true that ‘‘[t]he key to operation of a motor vehicle in Missouri is actual physical control.”

9 . The dissent relies on Wombles v. Gen. Am. Life Ins. Co., 541 S.W.2d 45, 47 (Mo.App.1976), to assert that the definition of operating varies according to the context in which it is used. Op. at 187. While acknowledging that court opinions frequently say that “the word ‘operate’ has varying meaning according to the context which primarily determines its meaning[,]” the Wombles court went on to say, "We can scarcely conceive a more precise way of saying that the word ‘operation’ is ambiguous, but we do not base our holding upon a ruling that here the word 'operation’ is ambiguous ‘in context’, whatever that may mean." 541 S.W.2d at 47 (emphasis added).

10 .But cf. Mayberry v. Director of Rev., 983 S.W.2d 628 (Mo.App.1999). We are aware of the teaching of the Baptist case that "a motorist may no longer be found to be driving while intoxicated merely because he is in ‘control’ of a running automobilef.]” 971 S.W.2d at 368. The Baptist court, however, concluded its observation by staling that § 577.001.1, as amended, would permit "operating a motor vehicle” to be established by circumstantial evidence. Id. The circumstantial evidence in this case establishes that Cross was operating the car, and the direct evidence establishes that he operated the car by turning off the car's engine and headlights.

11 . The dissent seems to suggest that, because Cross was startled when he was awakened by "loud verbal commands” and by "physical stimulation,” we cannot conclude that Cross was operating the car. Op. at 189, n. 2.We fail to see what relevance Cross’ being startled has on the issue of whether he was operating the car. It just indicates that he operated it while startled.

12 . The dissent asserts, "It is totally illogical and inconsistent with the intent of the Legislature to suggest that the manipulation of a device on a vehicle for the purpose of preventing it from being driven, or for a purpose other than to engage the motive power of the vehicle, constitutes driving while intoxicated in violation of § 577.010.” Op. at 191. Having the engine of a car running and then manipulating the engine's ignition surely constitutes operation of a vehicle.

13 . If the court found, however, that the circumstantial evidence established that the individual drove or operated the vehicle, the individual’s driving privileges could be revoked. See Baptist, 971 S.W.2d at 368.

14 . We agree that, because of the amendment to § 577.001.1, a defendant can no longer be convicted for driving while intoxicated if he is merely in "actual physical control” of a vehicle. The dissent relies upon the "strong intimation” of the Supreme Court in Lasley v. Director of Revenue, 954 S.W.2d 327, 328-30 (1997), to suggest that we are ignoring the "legislature’s clear intent” of the amendment. Op. at 186 and 187. In Lasley, the Supreme Court found that Jeffrey Lasley, who was preparing to back a truck from a driveway onto a city street and who had turned the truck’s engine on and then off in the presence of the police officer, was "in control of his vehicle in a position to regulate its movement at the time he was arrested for driving while intoxicated.” The court noted in a footnote that it was "arguable” that a different result might have been reached if Lasley’s offense had taken place after the 1996 amendment to § 577.001.1. Id. at 330, note 3. This speculation, of course, was dicta. Of course, it is equally "arguable” that Lasley’s acts of turning on and off the car’s engine would constitute “operating a motor vehicle.”

15 .Although it is possible for a person to be in “actual physical control” of a vehicle but not operating it, Cross’ case is not such a case. See Wilcox, 842 S.W.2d at 240.

16 . The dissent asserts that the legislature’s amendment to § 577.001.1 "made a policy determination that a person could no longer be punished, either criminally or by denial of driving privileges, for simply being in control of a vehicle while in an intoxicated condition. The revision serves the legitimate purpose of encouraging individuals who are concerned that they might be impaired to get off the roadway and stop, thereby enhancing the safety of the driving public." Op. at 187. This is not a case of Cross' "simply being in control of a vehicle while in an intoxicated condition.” An intoxicated Cross was in the driver’s seat of a vehicle with the engine running, with headlights on,, and with no one else in the vehicle. Moreover, when Cross was awakened by police officers, he immediately turned off the engine and headlights of the car and removed his keys. By keeping the term "operating” within the definition of § 577.001.1, the legislature made it abundantly clear that a person who is not driving but who is operating a vehicle in an intoxicated condition still a poses a danger to the driving public.

17 . See also Harvey M. Cohen and Joseph B. Green, Apprehending and Prosecuting the Drunk Driver. A Manual for Police and Prosecution § 10.01[1] (2000) ("The terms ‘driving,’ 'operating,' and ‘being in physical control’ are not synonymous.”).

18 . Indeed, the generally accepted view among the courts is the position taken by the Supreme Court of Delaware in McDuell v. State, 231 A.2d 265, 267 (1967): "The words 'operating' and 'driving' are not synonymous; they have well-recognized statutory distinctions. Of the two terms, the latter is generally accorded a more strict and limited meaning. The term 'driving' is generally used to mean, in this connection, steering and controlling a vehicle while in motion; the term 'operating,' on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.... One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it.”

19 . In Wilcox, 842 S.W.2d at 242, this court said, "Section 577.001.1, RSMo 1986, defines 'driving' as ‘physically driving or operating or being in actual physical control of a motor vehicle.’ Of the various definitions, the lowest common denominator is 'actual physical control’ because physical control is a necessary prelude to operating a motor vehicle.”

20 . This court's Southern District recently handed down an opinion in which it held that driving and operating were not synonymous. State v. Wiles, 26 S.W.3d 436 (2000). The court noted that previous cases involving a sleeping person behind the steering wheel of a running vehicle seized upon the "actual physical control” language of the previous version of § 577.001.1. Id. at 439-40. The court correctly pointed out that the cases did not explain what actions fell within the definition of "operate” because in each case "it was sufficient that the defendant had ‘actual physical control,’ regardless of whether he or she succeeded in using that control to operate the vehicle.” Id. The court went on to note that the "cases finding a lack of ‘actual physical control' do not explain the term 'operate' because in each case the most obvious manifestation that a vehicle was 'operating' was missing as the vehicle was not running.” Id. at 440 The Wiles court concluded that a sleeping individual behind the steering wheel of a parked truck with the engine running and the headlights and taillights on and with his feet on the brake and accelerator was operating a vehicle within the meaning of §§ 577.010.1 and 577.001.1. Id. at 441. The court concluded that the defendant was "engaging the machinery of his vehicle and was in a position to manipulate its movement.” Id. Cross, after being awakened by the officers, was in a position to manipulate the vehicle’s movement and was engaging the machinery of his vehicle by turning off the vehicle's engine.

21 . Cross objected when the state asked Siec-inski, "[W]hat was the odor that you smelled?” Cross said, "I’m going to object at this point, your Honor. The arrest would have been illegal because it was effected by the Macon city police, who had no legal authority to make such an arrest, and arrest occurred at the time they took the keys from the Defendant. Anything resulting from an illegal detention, seizure of the Defendant would be illegal.” The circuit court overruled his objection. This was the only question which Cross objected to on these grounds. Moreover, Siecinski’s testimony regarding Cross’ intoxication was based on his own observations — not on the Macon officers’ observations. See State v. Neher, 726 S.W.2d 362, 364 (Mo.App.), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987).

22 . The emphasis was in the original.