Lead Opinion
delivered the Opinion of the Court.
We granted certiorari to review the La Plata County District Court’s order in People v. Swain, No. 96CR152 (Colo.Dist.Ct. Dec. 9, 1996).
I.
On the evening of September 13, 1995, Swain met some friends in Durango, Colorado for dinner. The meal lasted approximately one hour, during which Swain consumed two beers. After dinner, Swain and his friends walked around downtown Durango to see if “there was anything happening.” They agreed to have a beer at a bar located on Main Street and upon their arrival, ordered beers and began to drink. Sometime between 9:00 and 10:00 p.m., Swain and his friends decided to leave the bar because they were being soaked by thrown beer. As Swain and his friends resumed walking around downtown Durango, Swain felt tired and informed his friends that he had to drive to New Mexico that night because he had a “get together” with friends in Farmington the following day.
At approximately 10:30 p.m., Swain got into his white pick-up truck and proceeded to drive out of Durango. Some time later, Swain got lost and had to backtrack to Hesperus, Colorado in order to find Highway 140 to Farmington. At an unknown time during the night of September 13,1995, or the early morning of September 14, 1995, Swain felt sleepy, pulled his pick-up truck over to the southbound side of Highway 140, and fell asleep.
On September 14, 1995, at approximately 2:00 a.m., La Plata County Sheriffs Deputies Todd Hitti- and Shelly Williams noticed a white pick-up truck parked one to three feet off of Highway 140- in the grass. Deputy Hitti pulled the patrol ear over to the side of the highway and radioed central dispatch that they were investigating an “abandoned vehicle.” As the deputies exited their patrol car, they both heard loud music coming from the truck.
The deputies approached the truck and found Swain lying, either asleep or pássed out, in the front seat. Swain was curled in a fetal position with his feet near the driver’s side door and his head resting towards the passenger’s side door. The keys were in the ignition and the truck’s radio was playing.
Deputy Hitti knocked on the window of the truck three times before Swain responded. Swain sat up, wiped his face, and rolled down the window. Deputy Hitti requested Swain’s vehicle registration, driver’s license, and proof of insurance. After fumbling through some leaflets, Swain was able to produce his proof of insurance but informed Deputy Hitti that he was unable to locate his driver’s license and vehicle registration. Both deputies smelled an odor of alcohol on Swain’s breath, noticed that his speech was slow and slurred, his eyes were bloodshot, and his
Swain told Deputy Hitti that he was on his way to Farmington from Norwood, Colorado, and that he had been drinking earlier in Durango. After providing his proof of insurance to Deputy Hitti, Swain lay back down on the seat. Deputy Hitti returned to the patrol car and radioed central dispatch to check for any outstanding warrants. As the deputies were waiting for the results of the warrants check, they conducted a DUI investigation. Swain failed a number of voluntary roadside sobriety tests and refused to submit to any form of chemical testing. Consequently, Swain was arrested and charged with driving under the influence of alcohol pursuant to section 42-4-1301(l)(a), 11 C.R.S. (1997),
The case proceeded to jury trial on May 23, 1996, in La Plata County Court. At the close of all evidence, the People submitted the following jury instruction, over the objection of Swain, based upon case law applicable to the express consent provisions of section 42-4-1301(7)(a), 11 C.R.S. (1997):
In Colorado, a person “drove” if he or she was in actual physical control of a motor vehicle.
“Actual Physical Control” is present when a person exercises bodily influence or direction over a motor vehicle; which is to be decided by a totality of the circumstances.
Factors you may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:
A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle’s ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.
No one factor listed above definitively decides whether or not a person was in actual physical control of a motor vehicle.
The jury found Swain guilty of DWAI,
On appeal to the La Plata County District Court, Swain asserted in his notice of appeal that the trial court erroneously instructed the jury that “drove,” an element of DUI,
II.
The People contend that the district court erroneously relied on a civil/criminal law distinction in concluding that this court’s analysis in Brewer v. Motor Vehicle Division, Department of Revenue,
Title 42, Part 13 of Article 4 sets forth vehicle and traffic regulations involving alcohol and drug offenses. In Colorado, it is a misdemeanor for a person to “drive” a vehicle while under the influence or while impaired by the use of alcohol, drugs, or both. See 42-4-1301(l)(a)-(b), 11 C.R.S. (1997) (“DUI statute”). By enacting this legislation, the General Assembly sought to foster public safety by discouraging individuals from driving while under the influence of alcohol. See Noe v. Dolan,
In construing a statute, the intent of the legislature is to be ascertained and given effect whenever possible. See Walgreen Co. v. Charnes,
Although the terms “drive” and “drove” are not statutorily defined in Title 42, a “driver” is defined by section 42-1-102(27) as a person “who drives or is in actual physical control of a vehicle.” 42-1-102(27), 11 C.R.S. (1997). Relying on our prior decision in Brewer, the People assert that it logically follows that the term “drove,” an element of the criminal DUI statute, means being in “actual physical control” of a vehicle. See 42-4-1301(1), 11 C.R.S. (1997).
In Brewer, we examined the meaning of the term “drove” in the context of a driver’s license revocation proceeding under Colorado’s express consent statute. See 42-2-122.1(l)(a), 17 C.R.S. (1984).
Generally, “ambiguity” exists when a statute is susceptible to alternate constructions. See Colby v. Progressive Cas. Ins. Co.,
In the twelve years since Brewer was decided, the General Assembly has revisited section 42-4-1301 on three separate occasions, but has neither altered the language nor indicated in any other manner that our analysis in Brewer is contrary to legislative intent. See Ch. 256, sec. 12, 42-4-1301, 1997 Colo. Sess. Laws 1467-68((2)(a.5) added and (6) and (8) amended); Ch. 199, sec. 17, 42-4-1301, 1995 Colo. Sess. Laws 956-58, ((9)(a) and (9)(b) amended); Ch. 337, sec. 1, 42-4-1301, 1994 Colo. Sess. Laws 2376-2390 (amended and entire title relocated). Under an established rule of statutory construction, the legislature is presumed, by virtue of its
We are mindful of the general proposition that “criminal statutes are to be strictly construed in favor of a defendant.” People v. Hale,
Here, because of Brewer’s judicial construction of the term “drove” to mean “actual physical control” and the legislature’s subsequent sub silentio affirmation, no ambiguity exists in the statute regarding the definition of the term “drove.” Accordingly, the rule of lenity is not applicable and cannot be the basis for reaching a result different from Brewer.
We therefore hold that the term “drive” in section 42 — 4-1301 means “actual physical control” of a vehicle.
III.
In sum, we hold that section 42-4-1301 makes it unlawful for any person under the influence or while impaired by the use of alcohol, drugs, or both to be in “actual physical control” of a vehicle. Accordingly, the judgment of the district court is reversed, and the cause is remanded to the district court with directions to reinstate the judgments of conviction and sentences imposed for DWAI and driving without a driver’s license.
Notes
. The issue for certiorari was stated as follows: Whether a person in actual physical control of a motor vehicle is "driving” for purposes of Colorado's driving under the influence statute, section 42-4-1301(1), 17 C.R.S. (1996 Supp.).
.This opinion refers to the terms "drive” and "drove” as elements of the DUI and DWAI offenses. Section 42-4-1301(l)(a)-(b), ■ 11 C.R.S. (1997), states that it is illegal for a person to "drive” a vehicle while under the influence or while impaired by the use of alcohol, drugs, or both. Section 42-4 — 1301(1)(h)-(i), 11 C.R.S. (1997), permits the use of the term "drove” in charging one with DUI or DWAI. Accordingly, for purposes of this opinion, the terms are synonymous.
. The defendant testified that he had only drank two and a half beers that evening because in his past experiences, if he drank more than three beers, he would "go to sleep.”
. No evidence was presented as to whether the ignition switch was in the "on,” "auxiliary,” or "off” position.
. Section 42-4-1301(l)(a) provides in pertinent part:
It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of alcohol and one or more drugs, to drive a vehicle in this state.
. Section 42-2-101(5) provides in pertinent part: No person ... shall operate a motor vehicle upon a highway in this state without having such license or permit in such person’s immediate possession.
. See Caple v. Department of Revenue,
(I) [A]ny person who drives any motor vehicle ... throughout this state shall be deemed to have expressed such person's consent to ... (II) the taking and completing of, any test or tests of such person’s breath or blood for the purpose of determining the alcoholic content ... when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle [under the influence or while impaired by the use of alcohol, drugs, or both],
.Section 42-4 — 1301(l)(b), 11 C.R.S. (1997), provides, in pertinent part:
It is a misdemeanor for anybody who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle in this state.
. Although Swain filed a timely notice of appeal, he did not file an opening brief with the district court.
. The district court relied on People v. Wood,
In dicta, the court of appeals discussed the legislature's newly-expanded definition of "driver,” to include all drivers in the state. See id. at 792 (discussing the definition of "driver” contained in section 42-1-102(22), which was later relocated to section 42-1-102(27)). In dismissing the amended definition as irrelevant to its holding, the court of appeals stated that "[a]s to the offense at issue here, the pertinent inquiry [still] concerns whether defendant was driving or operating a vehicle, rather than whether he had the status of being a driver.” Wood,
. This statute was revised and relocated to section 42-2-126(2)(a)(I), 11 C.R.S. (1997), and provides, in pertinent part:
The Department shall revoke the license of any person upon its determination that the person: Drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person's blood or breath [was over the specified legal limit].
. We note that the word “or” appears between the terms "driving” and "actual physical control." See 42-1-102(27), 11 C.R.S. (1997). Generally, the word "or” is a disjunctive particle that denotes an alternative; however, the word "or” may also be utilized as a "coordinate conjunction introducing a synonymous word or phrase or it may join different terms expressing the same idea or thing and it may be used as a particle to connect two words meaning the same thing.” State v. Ramsey,
. We recognize that Colorado commentators rely on Brewer and its progeny to define the term “driving” within the Colorado DUI criminal context as "actual physical control.” See Alexander G. Topakas, A Young Lawyer's Guide to DUI Suppression Motions, 25 Colo. Law. 63 (April 1996) (“‘Driving’ is defined as actual physical control of a motor vehicle”); Scotty P. Krob, Pretrial Motions to Suppress or Dismiss, Colorado DUI Bench Book III, 18-20 (Pat Furman Ed., 1995) ("A defendant is deemed to be ‘driving’ a motor vehicle under the DUI statute whenever he is in actual physical control of the vehicle, regardless of whether the vehicle is on a public highway and regardless of whether the vehicle is actually moving or moving under its own pow- . er“); see also Colorado District Attorneys Council, DUI/DWAI Manual: A Guidebook for Colorado Prosecutors 6: 3-4 (1990).
. The jury determined, pursuant to instructions, that Swain was in actual physical control of the vehicle. We have not been asked to review the sufficiency of the evidence supporting that determination. We, therefore, do not express an opinion as to whether Swain exercised "actual physical control” of a vehicle for purposes of the DUI statute.
Dissenting Opinion
dissenting:
The majority reinstates Swain’s conviction, holding that the trial court’s jury instruction defining “driving” as the “actual physical control of a vehicle” was appropriate. In my view, the plain and ordinary meaning of the word “driving” connotes movement, thus, the act of “driving” is not the same as being in “actual physical control of a vehicle.” I would affirm the district court’s holding that the conviction must be reversed. Hence, I respectfully dissent.
Swain was charged with driving under the influence (DUI), and was convicted of the lesser included offense of driving while ability impaired (DWAI). Both of these crimes require the element of “driving a vehicle.”
For guidance, I turn to established principles of statutory construction. Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. We first look to the statutory language and give words and phrases their plain and ordinary meaning. See People v. Shinaut,
When a statute is ambiguous, the court must look beyond the plain language of the statute. See Mason v. People,
When interpreting an ambiguous statute concerning a criminal offense, the rule of lenity requires that the statute be strictly construed in favor of the defendant. See People v. Forgey,
II.
Applying these principles to this case, Title 42 does not define the word “driving.” Thus, we look to the word’s plain and ordinary meaning. Webster’s Third New International Dictionary 692 (1986) defines “drive” as follows: “To set and keep in motion or in action through application of some amount of force: ... to guide a vehicle along or through.” “Driving” is commonly understood to involve movement. Other jurisdictions have adopted this definition. For example, in Mercer v. Department of Motor Vehicles,
In everyday usage the phrase, “to drive a vehicle,” is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions ... support a definition of “drive” that includes movement.... We believe these definitions are consistent with the usual and ordinary understanding of that term.
The familiar and generally accepted meaning of the word “driving” requires movement, hence, I believe that this court should require movement in the legal definition of this word. I disagree with the majority’s conclusion that “driving” does not require movement and only requires “actual physical control” of the vehicle.
Because I would hold that the word “driving” as it appears in section 42-4-1301(1) is
Although Title 42 does not define “driving,” Article 1, Part 1, which contains general definitions for Title 42, defines the word “driver” as follows:
“ Driver” means every person ... who drives or is in actual physical control of a vehicle.
§ 42-1-102(27), 11 C.R.S. (1997) (emphasis added). The majority interprets the word “drives” in this statute as a synonym of “actual physical control,” and concludes that these concepts are the same. The problem with the majority’s interpretation is that it renders the word “drives” superfluous. It is well-settled that courts must presume that the legislature inserted every part of a statute for a purpose and intended every part to be given effect. See Colorado Dep’t of Revenue v. Borquez,
“[Djriving” and “being in actual physical control” can describe the same activity only if we treat the phrase “or is in actual physical control” as useless baggage. Such a construction would run counter to the principle that “a statute should be so construed that no word, clause, sentence, provision or part shall be rendered sur-plusage or superfluous.”
State v. Graves,
There is an additional reason why the definition of “driver” supports my position that “driving” requires movement. The General Assembly’s inclusion of the two concepts— “driving” and “actual physical control” of a vehicle — in the definition of “driver” suggests that the legislature’s omission of the language, “actual physical control” of a vehicle from the elements of DUI and DWAI was intentional. If the legislature intended these statutes to be so broad as to include acts other than movement of a vehicle, it would have included the language, “actual physical control” in the elements of these crimes. It is not the province of this court to define criminal conduct. See Rodriguez,
The majority also relies on this court’s holding in Brewer v. Colorado Department of Revenue,
The majority notes that after this court’s decision in Brewer, the legislature declined to amend the DUI and DWAI statutes despite opportunities to do so. I agree with the majority that, the legislature’s silence gives rise to a presumption that the legislature ratified Brewer’s interpretation of “driving.” However, the legislature’s approval of this definition only extends to civil administrative proceedings like the one involved in Brewer. The legislature has never approved of the use of Brewer’s definition of “driving” in the context of a criminal proceeding.
Criminalizing activities that involve the use of á vehicle but do not involve moving the vehicle does nothing to further the goal of discouraging driving under the influence. Under the majority’s rationale, a citizen might be guilty of driving under the influence without ever having driven. Suppose, for example, Swain had never driven the car but
[0]ne can easily imagine other factual scenarios in which a person might reasonably be considered to be a “driver” when, under the circumstances, he could not be said to have driven the motor vehicle. Had Brewer been parked on the side of the street with the engine off, he would have been in actual physical control of the car. But I would be reluctant to conclude that he “drove a vehicle” under such circumstances.
Brewer,
When the facts would just as easily permit the inference that defendant stopped his car to avoid a DWI violation that could result had he continued to drive, it is inconsistent, as well as bad law, to signal intoxicated persons that they might just as well continue driving because they will be arrested for DWI whether they stop or not.
Boone v. State,
III.
I disagree with the majority’s determination that the word “driving” is interchangeable with “actual physical control” of a vehicle. In my view, neither the plain language of the statute, the definition of “driver” in Title 42, nor our decision in Brewer support the majority’s broad interpretation of the DUI and DWAI provisions contained in section 42-4-1301(1). I believe that the majority expands the definition of “driving” beyond that intended by the General Assembly as evidenced by the plain language of the statute. Hence, I respectfully dissent.
I am authorized to state that Justice SCOTT joins in this dissent.
. The DUI statute, section 42-4-1301(1)®, 11 C.R.S. (1997), provides in pertinent part:
"Driving under the influence” means driving a vehicle when a person has consumed alcohol or one or more drugs ... which ... affects the person to a degree that the person is substantially incapable ... to exercise clear judgment, sufficient physical control or due care in the safe operation of a vehicle.
The DWAI statute, section 42-4 — 1301(l)(g), 11 C.R.S. (1997), provides in pertinent part:
"Driving while ability impaired” means driving a vehicle when a person has consumed alcohol or one or more drugs ... which ... affects the person to the slightest degree so that the person is less able than the person ordinarily would have been ... to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.