Commonwealth v. BrownCommonwealth v. Brown
Appellant was found guilty, by a jury, of violating section 3731 of the Vehicle Code, 1 which provides, in relevant part, that “[a] person shall not drive any vehicle while . undеr the influence of alcohol . . . .” He alleges, on this appeal, that the trial court erred in instructing the jury on the elements of the offense. We agreе, and therefore vacate the judgment of sentence and remand the cause for a new trial.
The Commonwealth’s evidence was in the form of testimony by witnesses who had observed appellant and his vehicle during the time in question. One witness testified that, after seeing appellant’s car go past him on the highwаy, he had lost sight of it briefly, but had then come upon it as it slowed down and stopped. The witness identified appellant as the person he had seen in the car after it had stopped. This witness and others (including the arresting state police officer) stated that, when they approached appellant’s vеhicle, appellant was in the driver’s seat with his hands on the steering wheel. The car’s engine was running, the headlights and windshield wipers were on, and the car was in geаr. Appellant smelled strongly of alcohol, had a bottle between his legs, and had difficulty speaking and in getting out of his car. The state police officеr testified that, while he was telling appellant to get out of the car, it suddenly moved forward approximately one and one-half feet. The officer stated that he then reached inside the car, took it out of gear, and shut off the engine.
The court below charged the jury that, “[t]o be found guilty of this offense оf driving under the influence, it is not necessary that the vehicle itself must be in motion. It is sufficient that the operator is in actual physical control of the movements of either the machinery of the motor vehicle or the movements of the vehicle itself.” Although there is no Pennsylvania case interpreting the Legislature’s use of the word “drive” in the Vehicle Code, the weight of authori
We note first that the Pennsylvania Vehicle Code of 1959 proscribed operating a vehicle under the influence of alcohol, 2 and that the Vehicle Code of 1976 has substituted the word “drive” for “operate.” 3 We must presume thаt the Legislature acted intentionally in making such a change. See 1 Pa.C.S.A. § 1921.
In 1943, the State of Maryland amended its motor vehicle statutes in a similar manner replacing “operate or drive or attempt to operate or drive” with “drive or attempt to drive.”
See
Md.Code 1957, Art. 66I/2, § ll-902(b). In
Thomas v.
State,
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 сonnection, steering and controlling a vehicle while in motion; the term “operating,” on the other hand, is generally given a broader meaning to include stаrting the engine or manipulating the mechanical or electrical devices of a standing vehicle. [Citation omitted.] The two words have been thus distinguished in Delаware. See State v. Pritchett,3 Storey 583 ,53 Del. 583 ,173 A.2d 886 (1961).
Applying these definitions, the term “driving” is encompassed within the term “operating,” but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: While all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving.
We conclude that the Legislature intended thus to limit the Statute when ... it substituted the term “driving” for the term “operаtingf.]”
McDuell
v.
State,
The Indiana case of
Poling
v.
State,
Indiana imposes a criminal sanction for “driving” a vehicle while under the influence of liquor. Our statute does not contain the word “operating,” as do the statutes of some of the оther states.
Since these two key words have been interpreted in several jurisdictions and since Indiana’s statute was recently revised, we must presume the Legislature used the word “drive” intentionally.
In those jurisdictions where the word “drive” is used, it has been interpreted as requiring the vehicle to be in motion, not merely standing still with the еngine running. “Operate,” on the other hand, has been defined more broadly to include merely controlling the vehicle.
In view of the above, we must concludе that the Indiana statute prohibits a defendant from “driving” a vehicle in the common meaning of the word, i. e., to cause the vehicle to be in motion. See Black’s Law Dictionary (4th Ed. revised 1968).
Id. at 637.
A great many other jurisdictions (including those whose statutes contain the word “operate” whether or not in conjunction or dysjunction with the word “drive”) are in accord on the principle, basic to the interpretation of all such statutes, that the word “drive” connotes a vehicle set in motion by its driver, and that the definition of thе word “operate” includes and is markedly broader than that of “drive.”
See e. g., Jacobson v. State,
Judgment of sentеnce vacated and cause remanded for new trial.
Notes
. 75 Pa.C.S. § 3731.
. 75 P.S. § 1037 (repealed). Section 1037 provided, in relevant part, that “[i]t shall be unlawful for any person to operate a motor vehicle . while under the influence of intoxicating liquor . . . .”
Cases under the now-repealed section 1037 had dealt with the term “operate” as follows:
While it is not necessary that the vehicle itself be in motion, it is required that “the operator be in actual physical control of the movements of either [sic] the machinery of the motor vehicle or of the management of the movement of the vehicle itself.”
Commonwealth v. Kriner,
. See 75 Pa.C.S. § 3731(a).
. N.B. In 1969, the Maryland statute wаs once again amended to add the phrase “or be in actual physical control of any vehicle.” The prosecution in Thomas argued on appeal that the evidence was sufficient to show that Thomas had been in actual physical control of his car. In giving short shrift to the State’s argument, the Maryland Court of Appeals illustrated further, from a different perspective, the extremely narrow meaning accorded the term “drive:”