WI Supreme Court rules defendant cannot be convicted of operating vehicle while intoxicated.

• Author: Ziemer, David

Byline: David Ziemer

The Supreme Court held on Feb. 14 that, where no evidence was presented that a defendant physically activated or manipulated the controls of a vehicle, she cannot be convicted of operating while intoxicated.

On May 25, 2003, Kristin Haanstad met Timothy Satterthwaite at a bar around 7 p.m. While at the bar, Haanstad consumed alcoholic beverages. Sometime between 11:30 p.m. and 12:00 a.m., Haanstad gave Satterthwaite the keys to her car and Satterthwaite drove her and Justin Cushman to a park in the Village of Cross Plains where Satterthwaite had left his car. Haanstad sat in the passenger seat and Cushman sat in the back seat.

Satterthwaite parked the car, leaving the vehicle running and the headlights on. He then helped Cushman into his car. While Satterthwaite was doing this, Haanstad slid over from the passenger's seat into the driver's seat, with her body and her feet facing the passenger seat. Satterthwaite entered the car through the passenger-side door and sat there talking to Haanstad.

After about ten minutes, a police officer arrived, and Haanstad was charged with operating while intoxicated, and operating with a prohibited blood alcohol concentration.

Dane County Circuit Court Judge Diane M. Nicks found Haanstad not guilty, based on the absence of any evidence that Haanstad operated the vehicle. The City of Cross Plains appealed, and the court of appeals reversed in an unpublished decision.

The Supreme Court accepted review, and reversed the court of appeals, in a unanimous decision by Justice Louis B. Butler, Jr.

Section 346.63(3)(b) provides: "'Operate' means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

The court concluded that it would directly contradict the plain meaning of the statute to permit the court of appeals' interpretation to stand. The court reasoned, "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."

The court then distinguished County of Milwaukee v. Proegler, 95 Wis.2d 614, 291 N.W.2d 608...