|
COURT OF APPEALS DECISION DATED AND RELEASED February 25, 1997 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2711-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CITY OF STURGEON BAY,
Plaintiff-Appellant,
v.
ERIC A. FRIEHE,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Door County:
PETER C. DILTZ, Judge. Reversed.
MYSE, J. The City of Sturgeon Bay
appeals a judgment dismissing a civil forfeiture action charging Eric Friehe
with operating a motor vehicle while intoxicated and operating a motor vehicle
with a prohibited blood alcohol content.[1] The City
contends that the trial court erred by failing to direct a guilty verdict and
that there is insufficient evidence to support the jury's conclusion that
Friehe was not guilty of the charged ordinance violation. Friehe argues that the trial court erred by
finding the bank parking lot in which he was arrested to be open to the public. Because the uncontested facts show the City
was entitled to a directed verdict of guilty and the bank parking lot was open
to the public, the judgment is reversed.
The
facts are undisputed. Friehe was a
patron of the Maritime Bar in Sturgeon Bay.
He became intoxicated and went to his car that was parked in the Bay Lake
Bank's parking lot located next to the Maritime Bar. Friehe admits he was intoxicated and blood tests subsequently
conducted confirm that his blood alcohol level was beyond the permissible limit
established by statute for operating a motor vehicle. Friehe entered the vehicle, placed the key in the ignition,
started the car and turned the headlights on.
He then climbed over the center console into the passenger seat and went
to sleep. Friehe contends he was
awaiting the designated driver's arrival at the car so that the driver could
take him home.
The
Bay Lake Bank parking lot contained a sign that prohibited parking after
hours. A bank employee testified that
cars parked after bank hours were subject to being towed away and in fact some
vehicles that had been parked in the parking lot after hours had been
towed. On the night in question, a bank
employee observed Friehe's car running with its headlights on and informed the
police. When the police investigated
they found Friehe asleep in the vehicle.
After determining Friehe was intoxicated, the officer issued a citation
for operating a motor vehicle while intoxicated and for operating a motor
vehicle with a blood alcohol level in excess of .10. After Friehe was arrested, he was escorted to Door County
Memorial Hospital where a blood test confirmed his intoxication. Friehe stipulates that at the time in
question he was intoxicated.
The
City contends that the trial court erred by refusing to direct a verdict of
guilty based upon the uncontroverted evidence that Friehe was intoxicated and
had started the engine of the motor vehicle.
This case requires the application of a statute to undisputed facts, a
question of law which this court determines without deference to the trial
court's determination. State v.
Keith, 175 Wis.2d 75, 78, 498 N.W.2d 865, 866 (Ct. App. 1993).
The
City of Sturgeon Bay ordinance Friehe is charged with violating is an adoption
of § 346.63, Stats., which
provides that "[n]o person may drive or operate a motor vehicle" with
a prohibited blood alcohol content.
What constitutes operation of a
motor vehicle as that term is used by the statute has been well settled by
Wisconsin law. The operation of a motor
vehicle is described as the "physical manipulation or activation of any of
the controls of a motor vehicle necessary to put it in motion." Section 346.63(3)(b), Stats.
In County of Milwaukee v. Proegler, 95 Wis.2d 614, 618-19,
291 N.W.2d 608, 609-10 (Ct. App. 1980), the court dealt with an individual who
did nothing more than start the engine of a motor vehicle. The court there concluded that the starting
of a vehicle’s engine was sufficient to constitute operation of the vehicle as
that term is used in the statute. Id.
at 627-28, 291 N.W.2d at 614. Because
the starting of a motor vehicle itself constitutes operation, Friehe's intent
not to move the vehicle is irrelevant.
The
principle that the starting of a motor vehicle engine is sufficient to
constitute operation has been applied in a variety of cases. Id.; Elkhart Lake v.
Borzyskowski, 123 Wis.2d 185, 189, 366 N.W.2d 506, 508 (Ct. App.
1985). This well‑established
principle is controlling of the issue raised by the City and requires that we
conclude the trial court erred by refusing to grant the City’s motion for a
directed verdict. There are only two
elements of the offense charged: that Friehe was intoxicated and that he
operated a motor vehicle. His
intoxication was stipulated and the turning on the vehicle is sufficient to
constitute the operation of the motor
vehicle under the laws of Wisconsin.
Accordingly, there is no issue for the jury to determine, and the court
erred by failing to grant the City's motion for a directed verdict.
Friehe
contends, however, that the bank's parking lot was not a public highway or
private property held open to public use and, accordingly, is not a place to
which the statutory prohibition applies.
The trial court concluded as a
matter of law that the bank parking lot was private property held out for
public use and refused to submit this issue to the jury. Friehe contends the trial court erred and
that this court should affirm the judgment of dismissal based upon the City's
failure to demonstrate the bank parking lot was property to which the statute
applied. The bank had erected a sign
that prohibited after hours parking and had instructed its employees to
investigate and tow vehicles parked in the parking lot after the bank’s
business hours. Access to the parking
lot was unobstructed at all times, and the lot was used by persons making night
deposits after business hours as well as persons simply turning around in the
parking lot.
Whether
a parking lot constitutes private property held out for public use was
addressed in Kenosha v. Phillips, 142 Wis.2d 549, 419 N.W.2d 236
(1988). Our supreme court held that the
determination whether a parking lot is held out for public use as defined by
the statute is a factual determination to be made by the trier of fact. In Phillips, the supreme court
stated that the test to determine whether property was held out to the public
was whether the person in charge of the premises allows "the public as a
whole to make use of the premises for their motor vehicles." Id. at 558, 419 N.W.2d at
239. This test was later refined to
"whether, on any given day, potentially any resident of the community with
a driver's license and access to a motor vehicle could use the parking lot in
an authorized manner." La
Crosse v. Richling, 178 Wis.2d 856, 860, 505 N.W.2d 448, 449 (Ct. App.
1993).
In
this case, the only restriction on the bank’s parking lot was a prohibition
against after hours parking. The lot,
however, was open to its customers making night deposits and open to the public
in general in using the parking lot as a place to turn around. These authorized uses of the bank's parking
lot demonstrate that the parking lot was open to the "public as a
whole" for a use allowed by the owner.
Any of the bank's customers from the public in general could be using
the parking lot after business hours for night deposits. Although the bank prohibited parking after
hours, this prohibition does not close the parking lot to the public. The public was free to operate in the
parking lot for the purpose of making night deposits and turnarounds. As a result, the use of the parking lot was
not limited to a "defined, limited portion of the citizenry." Phillips, 142 Wis.2d at 557,
419 N.W.2d at 239. Because the City was
entitled to a direct verdict and the bank parking lot was open to the public
under section 346.63, Stats., the
judgment is reversed.
By
the Court.—Judgment reversed.
This
opinion will not be published. Rule 809.23(1)(b)4, Stats.