Section 5.3 Operation of a Motor Vehicle

• Library: DWI 2014

Section 577.001.2, RSMo Supp. 2012, defines the terms “driving” or “operating” as “physically driving or operating a motor vehicle.” Missouri courts typically construe “operation” broadly. Gibbs v. Nat’l Gen. Ins. Co.,938 S.W.2d 600, 604 (Mo. App. S.D. 1997). A person can be convicted of an alcohol-related traffic offense even if the vehicle was not actually observed to be in motion. Typically, these cases involve situations in which the defendant is found to be in an intoxicated condition in a parked vehicle. See, e.g.:

· State v. O’Toole, 673 S.W.2d 25, 27 (Mo. banc 1984) (citing City of Kansas City v. Troutner,544 S.W.2d 295 (Mo. App. W.D. 1976)) (both decided under former statutory language allowing a finding of driving or operating if the driver was “in actual physical control” of the vehicle)

· Troutner,544 S.W.2d at 300

· State v. Hollis, 800 S.W.2d 69, 71 (Mo. App. S.D. 1990)(decided under former statutory language)

· State v. Hoyt, 922 S.W.2d 443, 447–48 (Mo. App. W.D. 1996), overruled byCox v. Dir. of Revenue,98 S.W.3d 548, 551 (Mo. banc 2003)

· State v. Cross, 34 S.W.3d 175, 180 (Mo. App. W.D. 2000), overruled by Cox, 98 S.W.3d at 551

Before amendments to § 577.001 in 1996, the key to “operation” of a motor vehicle was actual physical control. Cross, 34 S.W.3d 175 (citing Gibbs, 938 S.W.2d at 604). “Actual physical control exists where there is domination or regulation of a vehicle and exists even where the vehicle is motionless as long as the person is keeping the vehicle restrained or is in the position to regulate its movements and the vehicle is running.” Hoyt, 922 S.W.2d at 447–48 (citing State v. Dey,798 S.W.2d 210 (Mo. App. W.D. 1990)). SeealsoO’Toole, 673 S.W.2d at 27; Troutner,544 S.W.2d at 300.

Hoyt, 922 S.W.2d 443, provides a clear illustration of the court’s willingness, under the former statutory language, to construe “operate” broadly for purposes of a DWI offense. In Hoyt, the defendant appealed his DWI conviction on several grounds, including his claim that insufficient evidence was presented to prove he was driving a vehicle. Id. at 445. Upon arriving on the scene of a stranded vehicle, the police officer observed the front end of the vehicle to be in a ditch. The engine was running and the lights were on, and the defendant was inside the car slumped over the steering wheel. Id. Subsequently, the police officer noticed the vehicle’s taillight go out and movement inside the vehicle. Id. The Western District of the...