State v. Cross

Where Miranda several reasons. a warn- to administer the test. The officer violat- given, right has been to consult ed the requirements by counsel is absolute and is not limited herein, under the facts and circumstances time. If unsuccessfully the driver tries prejudicial. judg- that failure was Implied contact counsel before the Con- ment of the trial court is reversed and the advice, sent Law it should be clear entry cause remanded for of an order di- record, repeats request when he his the Director recting to set aside the revo- refers to request the earlier for counsel Mr. privileges. cation of Brown’s refusal”), (potentially a “deemed whether he or she will or will given not be addition- BRECKENRIDGE, Judge, and time, given al time. If not to be additional SMART, Judge, concur.9 (unlike clearly it should be shown that the Miranda warning) there will be the consequence

immediate of revocation. The

arrestee who knows that already he has provided

been all the time to reach counsel Implied Consent Law requires

may wish to qualified reconsider refusal

by request by for counsel. Such review prejudice court then would elimi- Missouri, Respondent, STATE of Wilmoth, nate the conundrum present “...qualified that a refusal amounted Wilmoth, unequivocal refusal.” CROSS, Appellant. Charles Dale at 600. A “deemed” refusal should be re- No. WD 57145. viewed most cautiously opposed to an refusal, express by with awareness Missouri Court of Appeals, driver that no additional time will be al- Western District. lowed consequences and of the of the con- qualified tinued refusal. Because the ulti- Nov. goal any

mate is that refusal to take a test Rehearing Motion for Transfer to and/or is voluntary unequivocal, require- Supreme Court Denied Dec. ment that the officer take some minimal step additional to obtain such a refusal is

warranted.8

Here, given Mr. Brown was his 20

minutes before the Implied Consent Law

advice given and he was unsuccessful

in reaching attorney. given When

Implied advice, Consent Law he again re

quested counsel. The officer deemed that

response a refusal. About 10 minutes la

ter, expressed Mr. Brown a desire to take

the test if revocation were to be the conse

quence of his request continued to contact

counsel. The officer nevertheless refused test, attorney indicate an intent not to take the refusal after that time will any many conditions consent. result in revocation would eliminate problems. these requirement by legislature

8. A opinion ap- 577.041.1 that the officer advise the driver 9. This has been reviewed and provided proved 20 minutes is to contact an order of Court en banc. Shumaker, Kirksville, appellant. for

Seth Bickhaus, Atty., Ma- Timothy R. Pros con, respondent. SPINDEN, Judge. M.

PAUL Chief Dale appeals Charles Cross the circuit judgment convicting him court’s B in- Class misdemeanor while He toxicated. contends state’s evidence was insufficient to establish that he was while intoxicated. He also police contends that his arrest Macon illegal alleged officers was in- because jurisdic- fraction occurred outside Macon’s limits and that the circuit court tional in admitting breathaly- erred evidence of a zer test’s results because the state did not competent establish that it was evidence. affirm judgment. We the circuit court’s The evidence established on De- 13, 1998, police cember Macon officer Christopher dispatched Bowzer in- vestigate report person slumped of a parked over the seat of a car near U.S. Long Branch and Road. Bowzer found parked engine running the car with its and headlights on. The driver’s door was open, legs hanging and Cross’ out car touching ground. limits, but, parked city Macon’s outside concerned because he was about Cross’ health, investigate. Bowzer continued to unconscious, asleep ly- He found or Cross ing across the front seats. Bowzer could not arouse him. Bowzer radioed his dis- Patrol patcher Highway to summon a trooper to scene. arrived, Ma- trooper

Before a two other Bowz- police con officers arrived to assist them, er. Bowzer testified one Toal,1 “A by shaking says, commits the crime Officer awakened Cross statute ‘driving him at him. then turned yelling oper- Cross while if he intoxicated’ headlights off car’s ates a motor vehicle in an intoxicated while keys He ignition. removed drugged condition.”4 car, get out Toal attempted to of his but As- Cum.Supp.1999, the General told him to remain the car and took sembly “operates:” defined “As used in him. keys from When Toal asked Cross ‘operates’ ... chapter, the term ... drink, respond- how much he had physically driving means ed, enough.” “Not motor vehicle.”5 Kelley2 Patrol arrived Highway Trooper statutory primary rule of get brief time later ordered Cross the Gen construction is ascertain what patrol Highway his car. Patrol into Assembly give eral intended and effect Trooper Siecinski arrived moments John intent, and to that we ascertain intent spoke with Macon officers later and primarily by deeming the General Assem Kelley they had Trooper and about what plain to have and ordi bly intended observed. nary meaning of words uses strong testified that he noted a Siecinski Fulton, 982 Spradlin City statute. of intoxicants about Cross and saw odor (Mo. 1998). 255, “Operat banc empty beer car. He two bottles Cross’ the General ing” is a broad term which eyes watery, said that blood- Cross’ presume Assembly did not define.6 We slurred, glassy, speech shot and was Assembly to have intended for the General “uncertain, swaying ... his balance was and ordi give “operating” plain us to its “swaying, wobbling,” his was [and] walk “ meaning. statutory defi nary ‘Absent slow,” and staggering swayed and and he nition, the words in the statute will used to turn while was uncertain asked ordinary meaning given plain their walking. Siecinski that he concluded said ” State v. dictionary.’ as derived from but, intoxicated, this that Cross was 1999) (Mo. Hibler, 5 S.W.3d banc safety because of Cross’ condition and v. Di Columbia Athletic Club (quoting cerns, not so- he decided to conduct field Revenue, 806, 809 rector formally briety tests.3 Siecinski arrested 1998)). intoxicated and Cross while County him to the Macon sheriffs took dictionary “operate” as defines to a breatha- office where Cross consented “to cause to function[.]” Third Webster’s lyzer test which indicated that his blood Dictionary the En New International .182 percent. alcohol content was (1971). glish Language Unabridged understanding contends the state’s evidence This lends itself a broad term, Supreme that he was and indeed the was not sufficient establish of the treatment of as that term is has broad in its vehicle Court been example note 1994. the term. We as used RSMo —and original. emphasis Toal's is in provide The record does not Officer 5. The first name. merely Assembly defined the 6. The General Again, give Trooper Kel- the record fails "operat- "operates” “operating” terms ley’s first name. ing Section 577.001.1. a motor vehicle.” application to definition its While the restricts subject well said that “the 3. Siecinski vehicles, Assembly as- intoxicated, motor General of the and the—the conditions mud, reading anyone the statute would roadway shoulders sumed that with the lack of there, it, me, was a that was like it or could consult seemed know what means safety And ... doubt dictionary. issue. there my he was mind that intoxicated.” emphasis original. 4.The is in the 304

strictly example chapters as an acceptance purposes “[f]or its a broad definition of construed repeatedly Missouri courts have —that Court, Supreme term in construing the ‘operator’ broadly.” Gibbs v. National “oper- 304.010 declared that Company, General Insurance ating” encompassed: added).8 (Mo.App.1997) (emphasis fairly ... “[A]ll acts incidental point, We make this not because ordinary op- course of [an automobile’s] necessary, but to assert broad definition is eration, including act of clearly actions fit within the Cross’ stopping purposes en route for reason- Nonetheless, important term. it seems ably associated with the transit also but emphasize defining “operate,” which, all in point acts of time and cir- Assembly prompts apply the General us to cumstance, reasonably are connected plain ordinary meaning entering point the vehicle at the departure term which can be—and has been —de alighting therefrom at destination.” quite broadly. fined must assume that We Assembly the General wanted us to con City Teters v. Kansas Public Service Com- plain ordinary (Mo.1957) strue the word pany, (quot- Company, Karnes v. Ace Cab rewriting sense rather than the statute to 378, Indeed, (Mo.App.1956)).7 S.W.2d 380 match our of “context.”9 understanding citing 7.The using example dissent criticizes our the Teters’ than Teters as an of the Su- operating. rely definition of preme acceptance We on the dic Court’s of a broad defini- definition, tionary merely we cite Teters "operating” nothing tion of we are —and not-— Nonetheless, example. as an the dissent causes us Teters to conclude that the court narrowly. reads Teters too The dissent em confining "operate” was its definition of to phasizes ‘operating’ that the "definition of ... 304.010 that it did not intend for it to applicable cannot be deemed to the context of applied interpretation be in the of other stat- Op. Section 577.010.” at 187. The dissent as utes. specifically serts that Teters "[t]he Court not interpreting ed ‘operating’ that cases or ‘driv citing 8. The dissent criticizes our the Gibbs ing’ statutory in the context of other traffic said, key case because the Gibbs court "[T]he regulations applicable interpret were not operation aof motor vehicle in Missouri is ing meaning Slip op. under 304.010.” physical actual S.W.2d control.” 938 at 604. however, Focusing, on the Teters court’s The dissent asserts "the definitions examined analysis full opposite renders an conclusion. inapplicable” in Gibbs are case be- this said, judgment The court "A defendant’s Legislature specifically cause "the amended plaintiff’s McLarney Cary, Mo.App., case of control,’ physical 577.001.1 so that 'actual 144, 146, 98 S.W.2d was affirmed because ‘key’ to the definitions considered in plaintiff guilty contributory negligence was Gibbs, longer 'operating' no constitutes under therein, as a matter of law. The dictum loc. First, Chapter Op. 577.” at 188. we do not 146[3], cit. parked that a motor vehicle while rely merely on Gibbs for its definitions but being operated operator is not and the need proposition repeatedly that "courts have care, ordinary right exercise whether ‘operator’ broadly.” [the term] construed wrong, controlling is not here. The cases of Second, although 938 S.W.2d at 600. Mason, Mo.App., Freed v. 137 S.W.2d may longer pun- intoxicated individual Pump 676[4] and Jones v. Southwest & Mach. being only physical ished for in "actual con- Co., 754, 757[4], Mo.App. S.W.2d surely trol” of a the dissent is not regulations involved other traffic than one suggesting that an intoxicated individual can consideration; and, under sufficient for the operate drive and vehicle without here, purposes Schorling v. United States Fi Hence, "actual control.” it remains Co., delity Guaranty Mo.App. & key operation true that of a motor ‘‘[t]he 369, 370[3], was an action on an vehicle in Missouri actual is policy accident insurance and the automobile trol.” highway.” was not on the 300 S.W.2d at Looking at the cases that the Teters 9. The dissent relies on v. Gen. Am. rely important. court chose not to Wombles on is It is Co., (Mo.App. rejected Ins. evident that the court them because Life 1976), specific facts, operat assert that the of their not because context definition according proper interpretation somehow affected the varies in which it context "operating.” doing acknowledging Op. Even if we were more used. While involving certainly many concur the dissent that drunk cases We duty is to write or Judiciary’s person person “[t]he the courts held the sleeping Op. at 191. That is re-write statutes.” “actual operating to be under the why doing we refrain from so. part argues control” of the definition. He that he not inside the ear—he first was understanding, and with Given only partly in—and second be- was every activity articulate trying out asleep cause he and because Gen- vehicle,” “operating is included in “actual Assembly eral deleted concluding that difficulty we have no definition, control” from the his case did Cross’ case fits within the definition fit definition of presented operating. § 577.001.1 and that the state guilt sufficient evidence establish Indeed, argument the dissent uses this When Bowzer beyond reasonable doubt. ignoring that we are the General to assert arrived, was on the driver’s first Assembly’s amendment of 577.001.1— car, lying side of the across the front seats reading that our of the amended statute one engine running. with the No else was having amendment’s no ef- results circumstantial, Though in the vehicle. fect whatsoever. To the extent that this a fact state’s evidence was sufficient for distinguished court has actual reasonably that he had finder to conclude driving, this ar- control from engine. Baptist on the See turned car’s made this dis- Lohman, gument fails. This court (Mo.App.1 Revenue, 998).10 Cross, v. Director he tinction Wilcox After officers aroused immediately headlights (Mo.App.1992). turned off the Wil- ordinary In the engine.11 turned off the that an cox court found intoxicated word, sense of the he was asleep steering behind the wheel who car.12 in traffic lane of a parked of a car the was in highway engine running without the that, before the argues

Cross General Af- physical actual control of the vehicle. in § it Assembly amended of Assembly’s amendment ter the General “physically driving as “operating” defined 577.001.1,however, § individual in Wil- physical in operating being actual driving privi- longer that cox could no have his control of a motor vehicle.” He notes by turning operated car off opinions frequently say that “the that he that court headlights. engine and ‘operate’ varying meaning accord- car's word has ing primarily which determines the context meaning[,]” the Wombles court went on to suggest because 11. The dissent seems scarcely pre- a say, "We can conceive more by when was awakened Cross was startled he way saying ‘operation’ is cise that the word "physical by and "loud verbal commands” holding ambiguous, but we do not base our stimulation,” that Cross we cannot conclude 'operation’ is upon ruling a that the word here 2.We Op. at n. operating was the car. context’, may ambiguous ‘in whatever that being star- fail to see what relevance Cross’ added). (emphasis 541 S.W.2d at 47 oper- mean." was of whether he tled has on issue operat- ating just indicates that he the car. It Rev., ed it while startled. Mayberry v. Director 10.But cf. 1999). (Mo.App. We are aware of S.W.2d 628 teaching Baptist asserts, "a illogical of the case that motor totally "It is 12. The dissent may longer while Legis- ist be found to be of the inconsistent with the intent merely manipulation because he is in ‘control’ suggest intoxicated of a lature running prevent- purpose automobilef.]” of a device on a vehicle for however, court, driven, purpose Baptist ing being concluded 368. The or for it from power by staling engage observation that the motive its amended, other than vehicle, driving while intoxicated permit "operating a motor would constitutes Op. at 191. Hav- by circumstantial of 577.010.” vehicle” to be established in violation running then engine a car evidence in Id. The circumstantial evidence. surely con- engine's ignition operating manipulating the Cross was this case establishes that car, operation of a vehicle. establishes stitutes and the direct evidence leges for in actual control” from its definition merely being physical revoked “actual Hence, in case. particular control of the vehicle.13 makes no difference reading recog- our of the amendment does This is because the evidence established not, change operating nize the statute and does that was the motor vehi- Cross doing, physi- as the dissent accuses us of redefine cle.14 was not the term cal the motor he was “operates” encompass so as to control of “nearly every type of the vehicle.15 previously operating conduct phrase included ‘actual First, Cross’ acts of a car with ” Op. trol.’ engine running turning and then off agree previous headlights We our cases tended the car’s constituted Second, emphasize operation “actual control” of his car. even if this case, involving sleeping person. cases presented For were not the the state example, Dey, ample State v. circumstantial evidence to establish (Mo.App.1990), put an intoxicated that he the car’s it started was asleep steering operation. operation behind the wheel of a into That was con- parked engine running, tinuing vehicle with the found him. when Officer Bowzer and this court found that the individual That causing Cross was not the car to actual parked control the vehicle move—that that his —and was, therefore, “operating” legs hanging out the door was of no purposes vehicle 577.010.1. In consequence. He still was conclusion, said, is, reaching its the court causing “[A] car—that it to function. The finding of actual showing control is not state met beyond its burden of defeated fact the driver is reasonable doubt that Cross was asleep.” court, Id. at Dey 212. The how- the vehicle. ever, did not consider whether the individ- course, Of when the General As

ual’s actions would meet the statute, sembly presume amends a we part of the definition of 577.001.1. it intended for the amendment to have O’Toole, same is true for State v. City some effect. Kansas Wollard (Mo. 1984); banc State v. Hoyt, 1992), City, 831 S.W.2d 443 (Mo.App.1996); and State abrogation grounds recognized by on other Hollis, v. (Mo.App.1990). 800 S.W.2d 69 Rolla, City Benton v. 872 S.W.2d 882 significantly changing (Mo.App.1994). While the in this case holding Our definition of “operating,” which we to nothing disregard discuss does that rule of stat infra, Assembly’s utory the General dropping By amending construction. found, however, 13. If city the court that the cir- street and who had turned the truck’s presence cumstantial evidence on and then off in the established that the indi- officer, police operated was "in control of his vehicle in vidual drove or the indi- position regulate to its movement driving privileges vidual’s could be revoked. driving time he was arrested for while intoxi- Baptist, See 971 S.W.2d at 368. cated.” The court noted in a footnote that it "arguable” might that different result agree 14. We because of the amendment Lasley’s have been reached if offense had 577.001.1, longer §to a defendant can no be place taken after the 1996 amendment driving convicted for while intoxicated if he is specula- § 577.001.1. Id. at note 3. This merely in "actual control” of a vehi- course, course, tion, of was dicta. Of it is upon "strong cle. The dissent relies inti- equally "arguable” Lasley’s that acts of turn- Supreme Lasley mation” of the Court in v. on and off the car’s would consti- Revenue, Director 954 S.W.2d 328-30 “operating tute a motor vehicle.” (1997), suggest ignoring that we are "legislature’s clear intent” of the amendment. 15.Although possible person it for a to be in is Op. Lasley, Supreme 186 and 187. In “actual control” of a vehicle but not it, Jeffrey Lasley, pre- operating Court found that who was Cross’ case is not such a case. Wilcox, paring driveway to back a truck from a onto a See 842 S.W.2d at 240. ating” “physically driving operating clear that as or legislature made in actual control of a being if or longer punish it no wanted to individuals it used the in actual motor vehicle” and because they were found intoxicated and definition, disjunctive legis- “or” in the op-. of the vehicle but not physical control necessarily intended for each of the erating legis- the vehicle.16 The lature driving or lature, however, set forth to have distinctive pun- continued to want to alternatives Wiles, meanings. individuals if the evidence established State ish Indeed, (Mo.App.2000).17 440-41 courts on they driving operating or a vehi- recognized numerous occasions have cle in an intoxicated condition. something “actual control” means A in the driver’s seat drunken individual see, driving, e.g., than State other engine running of a motor vehicle with the 24, 26 Hughes, (Mo.App.1998); public. poses danger 212; therefore, neces- Dey, just why the reason Surely, this is Assembly meant for sarily, the General the terms Assembly General defined than something other “operating” mean “drive,” “driving,” “operates” “operat- or driving. ing” “physically driving operating Operating vehicle.” a vehicle has to motor course, overlays “driv- Of and distinct something separate mean instance, an individual who ing.” For a motor vehicle. General drives a motor vehicle is also “operates” Assembly by using the term it. control of is that it intoxicated individu- has said wants by “driving” term activities described they get even stop and think before als among the activities de- would be included Assembly into their vehicles. The General and the by “operating,” the term scribed specifically telling those individuals by both of those terms activities described if not even the vehicle consider the activities de- among would be included you are intoxicated. physical con- by scribed the term “actual Moreover, demonstrates the legislature diagram in its trol.”19 This because the “oper- relationship of the three terms: version of 577.001.1defined prior B. legislature’s Joseph See also M. Cohen Harvey 16. The dissent asserts Apprehending Prosecuting policy "made a amendment Green, longer Police and Prose- Drunk Driver. A Manual for determination that a could no (2000) ("The ‘driving,’ terms 10.01[1] cution criminally by punished, denial of be either 'operating,' ‘being physical control’ are driving privileges, simply control synonymous.”). condition. of a vehicle while in an intoxicated purpose legitimate The revision serves the Indeed, accepted generally view encouraging who are concerned individuals position taken among courts is the might impaired get off the they Supreme in McDuell v. Court of Delaware thereby enhancing roadway stop, State, (1967): "The words 231 A.2d Op. safety driving public." 'driving' synonymous; at 187. This 'operating' of the are statutory distinc- they well-recognized "simply being in con- have a case of Cross' is not terms, generally the latter is tions. Of the two intoxicated condi- of a vehicle while in an trol meaning. a more strict and limited accorded in the driv- tion.” An intoxicated Cross was mean, 'driving' generally used to is The term engine running, of a vehicle with the er’s seat connection, controlling a steering and in this on,, headlights one else in with and with no motion; 'operating,' the term while in vehicle Moreover, when Cross was the vehicle. hand, given a generally broad- the other officers, immediately by police he awakened engine starting or er to include headlights turned off the de- manipulating or electrical the mechanical keeping keys. By removed his car and may not standing One vices of a vehicle.... "operating” the definition of within term it; operating but one vehicle without drive a may operate 577.001.1, legislature made it abundant- a vehicle devices of or ly person who is not but clear that a driving it.” without operating a vehicle in an intoxicated who is Wilcox, court poses danger S.W.2d at a a 19. In condition still said, defines "Section public. of his contention he relies on State All of the support acts would constitute driv- ing and would actual Liebhart, operating constitute (Mo.App. physical control. Assembly The General 1986), superseded by statute on other removed from the definition those acts of Wiles, as grounds stated in State actual control that did not consti- (Mo.App.2000), in which the Thus, operating tute or driving. previous court noted: seizing upon courts’ “actual physical single a There was set tire tracks control” portion of definition 577.001.1’s leading from highway the accident prohibit should not full giving us from sitting in the appellant vehicle and meaning to the “driving” “oper- terms keys attempting seat with the driver’s ating” that remain in the statute.20 Our damage start the vehicle. There was being conclusion does not rest on Cross’ along actual a fence and a the accident physical control of the mailbox motor vehicle route, but on evidence that established Cross’ as well as to the vehicle itself and operation of the motor vehicle. injuries. had appellant sustained When arrived, trooper were no there other complains

Cross also the evidence persons present or nor was did not establish that vehicles he was intoxicated at operating the time he was any vehicle. there evidence that such others had 'driving' ‘physically driving operating vehicle.” Id. The court went on to note that control of a motor finding the "cases a lack of ‘actual definitions, vehicle.’ Of the various the low- explain 'operate' control' do not the term est common denominator is 'actual because in each case the most obvious man- control’ because control is neces- 'operating' that a vehicle was ifestation prelude sary operating a motor vehicle.” missing running.” as the vehicle was not Id. sleep- at 440 The Wiles court concluded that a recently 20. This court's Southern District steering individual behind the wheel of opinion handed down an driving in which it held that parked engine running truck with the and the synonymous. taillights headlights and on and his feet Wiles, (2000). State v. 26 S.W.3d 436 on the brake and accelerator was previous involving court noted that sleeping person cases §§ vehicle within the of steering behind wheel of a the and 577.001.1. Id. at 441. The court con- running upon phys- vehicle seized the "actual "engaging cluded the defendant was the that language previous ical control” version machinery position was in a of his vehicle and Id. at 439-40. court cor- 577.001.1. Cross, rectly pointed manipulate out that the cases did not ex- to its movement.” Id. after officers, plain what by actions fell within definition of awakened was in "operate” because in each case "it was suffi- position manipulate move- the vehicle’s cient the defendant that had ‘actual engaging machinery and was of his ment control,’ regardless of whether he or she suc- turning engine. by the vehicle's vehicle off using operate ceeded in that control to 184 ... him permit [sic] from keys [Cross] to his prior on the scene present

been trooper scene until the leaving arrival. from not free to Clearly, Cross was arrived.” although that The court found Id. leave, liberty had restrained. and his been that the defen- the evidence established effect, was, in under arrest. Cross at the time was the vehicle dant accident, that he was intoxicated of the for arrived, police Macon did not and that he had the officer

when beverages they after knew that intoxicating mally no access to arrest Cross because time, prove failed to that the state In jurisdiction. they outside their time he intoxicated at the defendant was deed, officer a law enforcement when the vehicle. Id. was jurisdiction, status his territorial his leaves v. private citizen’s. State is the same as Liebhart, operat was Unlike Cross Devlin, 850, (Mo.App. 851 745 S.W.2d police Macon officers ing the vehicle when 310, State, 1988); 679 S.W.2d shortly thereaf Settle arrived arrived. Sieeinski 1007, denied, 472 (Mo.App.1984), that was intoxi cert. U.S. ter and concluded Cross (1985). 2701, evidence established “A cated. Sufficient L.Ed.2d 717 105 S.Ct. intoxicated at the time he Cross was showing may citizen arrest on private operating the vehicle. and reasonable felony of a the commission party, the arrested grounds suspect point, In his next Cross asserts affray peace, of the prevent an or breach him finding that the circuit court erred by if authorized and for a misdemeanor Ma violating 577.010.1because guilty of Devlin, at 851-52 745 S.W.2d statute.” arrested him. police illegally officers con 317-18). Settle, This (citing were outside that the officers argues He has held that a District court’s Southern keys they seized his jurisdiction their when authority to arrest an lacks private person Highway troop him until a Patrol and held “ B misdemeanor individual for Class Indeed, per ‘seizure er arrived. Ben Forste v. driving while intoxicated. jurispru Fourth Amendment son’ under ton, 910, (Mo.App.1990). application requires dence either therefore, force, officers, no au slight, or where had however The Macon absent, to an officer’s submission force to arrest thority Cross. subject’s authority’ to restrain

‘show Cross, Shahid, 38, liberty.” State v. suppress not seek did Ho (citing (Mo.App.1991) trial, and he testimony before the officer’s California dari, 111 S.Ct. 499 U.S. trial constitutional object to it at on did not (1991)). L.Ed.2d 690 rule, a general constitu grounds.21 “As raised at the earliest claim must be tional sub- that Cross The evidence established stage of at each opportunity preserved au- officer’s show of mitted to the Macon v. Blanken judicial process.” State get out thority. attempted Cross When 1992). ship, 830 S.W.2d him to officer told his a Macon un his appeal contention Cross’ key the car’s from stay in the car and took —that testi- the officers’ arrest rendered they lawful “took him. Bowzer testified illegal.” court over The circuit would be objected the state asked Siec- 21. Cross inski, only ques you objection. odor This was ruled his "[W]hat said, going object "I’m these objected smelled?” to on which Cross tion would point, your Moreover, Honor. The arrest testimony re grounds. Siecinski’s effected illegal it was been because have was based on garding Cross’ intoxication legal au- city police, who had the Macon Macon officers’ on the own observations—not arrest, arrest thority an to make such Neher, See State v. observations. they keys took the at the time occurred denied, 484 U.S. (Mo.App.), cert. resulting Anything Defendant. 146, (1987). L.Ed.2d 102 108 S.Ct. 98 detention, illegal seizure of the Defendant

185 LOWENSTEIN, raony Judge, poison- inadmissible as “fruit of the SMART, BRECKENRIDGE, Judge, ous tree” —comes too late. SMITH, Judge, Judge, H. EDWIN Moreover, that Macon act officers TURNAGE, Judge, E. WILLIAM Senior jurisdiction pre ed outside their does not concur. clude them from about what testifying ELLIS, Judge, separate dissents they observed. Overby, State v. 432 STITH, opinion. LAURA DENVIR (Mo.1968). 277, validity S.W.2d 279 “The HOWARD, NEWTON, Judge, Judge, arrest, most, invalidity or of the at the Judge and HOLLIGER concur in the validity

would affect the of a search dissenting opinion. (applying connection the arrest.” Id. Const., XIV, U.S. amends. IV ELLIS, Judge, dissenting. (1945)). I, § Const., Mo. Art. 15 I respectfully dissent. ‘driving “A commits the crime of

In his final point, Cross contends operates while intoxicated’ if he the circuit court in admitting erred drugged vehicle while an intoxicated or evidence of the breathalyzer test results. (1994) (em- 577.010.1, condition.” RSMo objected He grounds results on the 577.001.1, phasis original). Section hearsay and “[[improper foundation.” (1994), “operates” defined RSMo as used agree We that the circuit court erred in mean, “physically the statute to sustaining objections, but we do not operating being or or in actual any prejudice discern to Cross. Section 1996, control of a motor vehicle.” In requires 577.010.1 proof only that a defen Legislature “op- amended the definition of “operate[d] dant a motor vehicle while in read, erates” in “physically 577.001.1 an drugged intoxicated or condition.” It a motor vehicle.” require does not showing of any level of (1999). Cum.Supp. intoxication. This court’s Southern Dis The amendment deleted “or phrase trict observed: control of’ the required “[T]he state is not produce Thus, motor vehicle from the definition. results of prove chemical tests to intoxi- was incumbent on the prove state to be- Ruark, cation.” State v. (a) yond a reasonable doubt “ (Mo.App.1986). ‘Intoxication’ “physically driving mo- ‘physical is a usually condition’ evi- (b) tor vehicle” and that he did so “while feet, denced unsteadiness on the slur- ... intoxicated condition.” ring speech, lack body coordination statute, Legislature When the amends impairment and an of motor reflexes.” presumed Legislature it is intend Id.; see also Maggard, [State u] change existing ed to effect some in the [845,] S.W.2d 849 [(Mo.App.1995)]. City law. Wollard v. City, Kansas “Whether a may defendant is intoxicated (Mo. 1992); S.W.2d banc Bennett proven by any be witness who had a Revenue, v. Director opportunity reasonable to observe him.” W.D.1994). (Mo.App. To amend a Maggard, 906 S.W.2d at 849.22 and accomplish nothing statute from the Teaster, (Mo. State v. amendment would a meaningless act. App.1998). Trooper Siecinski’s observa Revenue, Kilbane v. Director Dept. tions were sufficient to establish Cross’ 1976). A violation of beyond a reason statute should “never be in a construed able doubt. mooting manner which results in the We affirm the judgment. legislative changes circuit court’s legislature since the emphasis original. 22. The was in the

186 running presumed solely theory never have committed a use- under the Harris, 544, act.” State v. 705 of person physical less S.W.2d was in “actual control” E.D.1986). (Mo.App. phrase 548 in the vehicle as is used (1994). § Hoyt, RSMo 922 acknowledges majority While the 448; Chinnery S.W.2d v. Director at of in 1996 577.001.1was amended to delete 50, Revenue, (Mo.App. 885 S.W.2d 52-53 in being physical “actual control” of a mo- 69, W.D.1994); Hollis, v. State 800 S.W.2d finding tor vehicle as a for a basis S.D.1990); 71 Krienke (Mo.App. See also intoxicated, it then driving while moots Lohman, 11, (Mo.App. v. 12 963 S.W.2d specifically legislative change this enacted W.D.1998); Gleason v. Director Reve- by redefining “operates” to include nue, 189, (Mo.App. 190-91 859 S.W.2d physical running control of a au- W.D.1993). Moreover, our re- courts have tomobile, thereby encompassing nearly ev- peatedly phrase physical used the “actual ery type previously of conduct included in control” in as used phrase “actual control.” In so physical (1994), justify upholding convic- DWI necessarily doing, legisla- distorts suspensions tions or and revoca- license intent amending ture’s clear in the statute. or sleeping tions is person when a found Further, infra, as its interpreta- discussed is passed in the vehicle while the motor out tion of 577.001.1 is at odds with the O’Toole, 25, running. State v. 673 S.W.2d Lohman, teaching Baptist v. 971 S.W.2d (Mo. 1984); Hoyt, at 27 922 S.W.2d banc E.D.1998), (Mo.App. and the strong 366 448, 52, v. Chinnery, 885 S.W.2d Stoltz of our in Supreme Lasley intimation Court Revenue, 711, 714 Director 816 S.W.2d Revenue, v. Director S.W.2d W.D.1991); (Mo. 1997) (Mo.App. Dey, 798 S.W.2d merely being phys- banc in Nickerson, 716, 212; State v. 763 S.W.2d running control of a in- ical automobile is E.D.1989); Taylor v. (Mo.App. adequate to constitute McNeill, reasons, (Mo.App. I S.W.2d For all vehicle. these dissent. W.D.1986). Indeed, gone has so court fully In order to more understand far as a license uphold revocation legislature’s and intent of the de- theory where of “actual control” phrase letion of the “actual passed found asleep the defendant was statute, helpful trol” form the it is to re- keys ignition out car with the in the interpreted prior view how statute was running. engine even though to the amendment. Revenue, 842 S.W.2d Wilcox v. Director of Missouri courts have defined “actual W.D.1992). (Mo.App. 243-44 control” mean a domination vehicle, have presumed of a it exists is regulation long Legislature and complete full and keeping as the is the vehicle re acted with awareness law, regulate present state of the position knowledge strained or is prece- judicial legislative running. including movements the vehicle Rumble, (Mo. dent. Hoyt, 447-48 State State S.W.2d Harris, W.D.1996); 1984); Dey, 798 App. State v. “ W.D.1990). ‘[Ajctual Thus, 577.001.1 was (Mo.App. 1996, the Legislature simply control’ a vehicle means amended courts appellate aware that Missouri’s position regulate in a move to be routinely affirming DWI convictions engine of a which has its ments vehicle Dey, suspensions and revocations running.” 212. Mis license sit- consistently upheld or licensee was courts have driv where the defendant souri (DWI) in- ting a motionless some convictions ing while intoxicated was not suspensions when the license stances even revocations running, relying on the “actual sitting or licensee is where the defendant § language with the control” 577.001.1. in a motionless vehicle

187 in power “driving” of The of sec legislative of the State 1996. definition Hines Director [v. Missouri is vested in the Assem- tion 577.001 on which General Revenue, Ill, “And, (Mo.App. un- 916 S.W.2d 884 bly. Mo. Const. Art. of 1. 1996)] Chinnery relied has been by otherwise restricted con- less state in changed. The statute was amended stitution, power this unlimited and ‘is ” “drive”, “driving”, “oper 1996 to define practically Opponents absolute.’ Pris- of Site, “operating” “physically ates” or to mean Carnahan, Inc. v. W.D.1999) vehicle.” or (Mo.App. (quoting State ex Supp.1996. At Section rel. Farmers’ Elec. Coop., Inc. State respondent the time was arrested the Auth., Improvement Environmental “physi section 577.001.1 definition was (Mo. 1975)). S.W.2d banc Accord- cally driving or in ingly, right, it is the and indeed the consti- a actual control motor vehi duty, Assembly tutional of the General of cle.” determine what acts conduct shall crimes,

constitute otherwise sanc- be (emphasis original). Id. at n. 3 in tioned, driving privi- such as denial of abundantly foregoing, Based on the it is By leges. amending 577.001.1 to ex- to, Legislature clear that the intended “actual physical clude control” from the fact, in in significant change did effect a driving, crystal definition of it is clear the §of the law with the amendment to, Assembly in General intended and did Nonetheless, majority 1996. rules fact, change effect the statute. It by adopting expansive otherwise defini- policy made a determination that a person “operating” tion of the term that effective- longer punished, could no be either crimi- ly incorporates concept of “actual nally byor denial of driving privileges, for physical control.” simply being in control of a vehicle while profusion idea of the “Some crude in an intoxicated condition. The revision judicial upon subject the general views legitimate purpose encourag- serves the may here involved be drawn from the fact ing individuals who are concerned that containing that 50 entries definition of they might impaired get be off the phrase ‘operate a motor vehicle’ are roadway stop, thereby enhancing listed 29A Words and Phrases 396- safety driving public. (1972).” Wombles v. General Ameri (Mo. Moreover, Co., our courts have acknowl can Ins. Life S.D.1976). edged App. frequent prelude “A deletion of “actual opinions attempting phrase control” from to define the changed the statute ‘operate a motor vehicle’ is the statement Baptist of the statute. In v. Loh man, E.D.1998), ‘operate’ varying that the word has mean (Mo.App. S.W.2d 366 ings according primarily to context which the Eastern District of court this declared meaning.” determines its Id. the case the amendment made 1996 means bar, majority attempts apply may that “a longer motorist no be found to “operating” definition of that cannot be merely while intoxicated be applicable deemed to the context of is in a running cause he ‘control’ of auto § 577.010. Also, Supreme mobile...” Id. our acknowledged legislative Court amend majority “oper- uses a definition of Revenue, Lasley ment in v. Director 954 ating” City found in Teters v. Kansas Pub- 1997), S.W.2d 327 stat (Mo.1957). Co., lic Service 300 S.W.2d 511 ed: dealing a tort case with the Teters was arguable generally It that a result which application different 304.010 every might suspension provides person operating be reached had the highways exer- respondent’s driver’s license been based motor vehicle on the shall care. In that occurring August highest degree on conduct after cise the Gibbs, case, longer parked the owner of a truck on the tions considered Chapter went out to his truck to retrieve under street stitutes from the back of the some merchandise Accordingly, change to the statute opening truck. While he was doors the definitions examined has rendered compartment, the a bus ran into his back statute. inapplicable Gibbs to the current expan- truck. The Teters used an Court I that agree physi- While hold in sive definition of the term to operating presrequisite cal control is to 304.010, § owner the context of the truck vehicle, agree I do not that these motor truck at the time of “operating” was be, in overlap terms so much as to two obligated to exercise the collision effect, synonymous. majori- practical in highest degree the of care the course ty purports recognize that these terms operation. Id. 516. this meanings operat- have and that different specifically The Teters noted that Court physical actual ing merely is a subset of interpreting “operating” “driving” cases control, But in fact it then driving. as is statutory in the context of other traffic physical actual control operating defines applicable were not to inter- regulations defined, by stating that one previously under 304.010.Id. preting if a vehicle can be found Thus, that acknowledged 517. the Court control of a one is found actual have “driving” the terms course, is, exactly running vehicle. This when used in other meanings different actual what in order to show required is statutes, that it was thereby confirming cases, if a control most since definition broad of those confining its running then whether those vehicle is terms to 304.010 and that it did in it are intoxicated is irrelevant. applied for to be intend this definition majority states This is evident when the interpretation of other statutes. the difficulty concluding ... that it has “no Furthermore, Gibbs v. National Gener presented that the state sufficient evidence Co., (Mo.App. Ins. S.D. al S.W.2d guilt beyond a reason- to establish [Cross’] 1997), majority relies on for which the In reach- Maj. Op. able doubt.” courts “have proposition the that Missouri conclusion, majority relies on the broadly” repeatedly ‘operator’ construed 1) that the state’s separate two theories: Chapters 304 and examines under evidence was sufficient circumstantial “oper numerous different definitions vehicle, and operated that Cross prove provided for un ating” which have been 2) that the direct evidence establishes statutory chapters. Id. at der various by turning car off the operated the Cross reviewing the various 603-604.1 After headlights. engine car’s applied under different definitions following cir- majority points to the key concluded that “the chapters, Gibbs support its conclu- cumstantial evidence a motor vehicle Mis operation (1) seat “in the driver sion: Cross was actual control.” Id. souri is seats with the However, lying across the front Legislature specifical (2) was in the running;” and one else “[n]o that “actual ly amended 577.001.1 so majority contends that control,” vehicle.” Id. The “key” to the defini- car, Ham, passenger get passenger to into largely Hay 1. Gibbs relied accelerator, 1962), causing analyzing accidentally (Mo.App. touched and crash into vehicle to move forward operating a motor vehicle what constitutes concluded that Hay fact the store. Id. The court Chapters 304. addressed the under touching passenger's the accelerator "oper term act of multiple definitions of the necessary performed in the was an act to be in various cases and ate” have been utilized place from one Hay passen movement of the vehicle involved a treatises. Id. at placed actual her in ger parked and left another in a vehicle that was "op rendering her the running at 120. When control of outside a store. Id. vehicle. Id. at 122-23. erator” of the passenger over to allow another scooted “operating the this circumstantial evidence “was sufficient evidence to constitute reasonably reject for a fact finder to conclude I the notion that such car.”2 Id. engine.” conduct, had the car’s solely response he turned on which occurred Maj. I Op. at 180. submit that such evi- “physi- police presence, amounts to wholly inadequate dence prove be- vehicle,” cally driving yond a reasonable doubt that turned (1999), Cum.Supp. even on the car’s and that he was intoxi- adopted by under the view the Southern cated at the time. there was no one While Wiles, District of this court State v. arrived, else in car when the officers S.D.2000), on which (Mo.App. S.W.3d 436 regard- there was no evidence whatsoever so, the majority doing also relies. ing whether other were near the people majority change asserts that vicinity. car or in the was no evi- There it “from prohibit 577.001.1 should not car, dence as to who owned the or how giving ‘driving’ full to the terms long it had sat at the location. While ‘operating’ that remain in the statute.” obviously someone had to drive the car to Maj. Op. Accordingly, appro- at 180. it is location, and while a might fact finder priate to in some detail. review Wiles Cross, draw the inference that was there Wiles, In City a Webb Police Officer is no evidence as to whether he was intoxi- report responded to a of a loud vehicle cated when it was driven there. There Wiles, idling in a residential area. presence was evidence of the of beer cans car, at 438. When he arrived at the indicating that alcohol S.W.3d some scene, may pick-up parked have been he found a truck at consumed after the vehicle stopped by was I angle facing dumpster side road. an a with the en- respectfully suggest majority’s that the as- gine running a fast idle. Id. The vehi- sertion that the circumstantial evidence headlights, taillights lights cle’s and brake permit juror was sufficient to a reasonable were all Id. The then on. officer observed to find that Cross turned on the car’s truck, slumped inside the defendant engine while an intoxicated condition is wheel, steering over the his with left foot logic (going flawed from a to d without pedal, right on the brake foot on the accel- c) regard to b and and erroneous as a in park. erator and the vehicle Id. After Moreover, matter of law. if there is to be failed respond defendant the officer’s any distinction between operating a vehicle window, opened knock officer it, being control of whereupon, side door after driver’s the mere act in control of a run- vehicle, falling almost out of the the defen- ning car would be sufficient to consti- up- dant had to be assisted into an back “operating” tute the car under the current Wiles, right position. statutory language applicable and the case The a intoxi- strong officer smelled odor of law. an open cants and observed container of apparent recognition problem, whiskey, open of this container of beer and majority unopened latches onto the fact that several containers beer. Id. turned off the and headlights Cross at 438-39. The defendant failed three so- and contends that is sufficient briety driving this direct tests and was arrested for added). Later, put perspec- (Emphasis 2. This evidence must also be tion.” but still on examination, asleep prefacing testimony tive. Cross was in the vehicle. Officer direct testimony Bowzer’s was evidence that Officer Toal advised Cross to remain in testified, him, regarding keys this conduct. He on di- the vehicle and took the Offi- examination, again rect as follows: awoke cer “was "[Cross] Bowzer testified Thus, by presence.” to loud verbal commands from Officer Toal alarmed our Cross was by and also stimulation. was awakened “loud verbal commands” and [He] by presence. "physical alarmed And was [he] then shut stimulation.” He startled headlights police standing off the turned off the alarmed to see three officers ignition keys igni- and removed the from the over him. obvious while intoxicated. Id. He was because “the most manifestation felony D subsequently charged Class that a was ‘operating’ missing vehicle was driving intoxicated and found while running.” the vehicle as Id. guilty jury. Id. by Therefore, the court went on to con- statute, holding strue terms appeal, argued

On the defendant “driving” have distinct “operating” prove “phys- that he was state failed to meanings. Id. at 440-41. ically operating” motor vehicle required while intoxicated so, In doing the Southern District re § 577.001.1. Id. The defendant conceded Ducatt, 22 Conn.App. viewed State statute, version of prior under the (1990), State, Flournoy A.2d would have been sufficient to evidence (1962), Ga.App. 128 S.E.2d convict him of while intoxicated Plowman, 28 Mass.App. Commonwealth v. was “in actual control because he (1990), Ct. 548 N.E.2d 1278 each aof motor vehicle” but contended that “operating.”3 “operates” which defined statute, since amendment of the the 1996 Wiles, It is at 440-41. fair to Wiles, sufficient. longer was no they say generally defined S.W.3d at 439. broadly, as very motor vehicle contention, In analyzing defendant’s the position is in and in a to person a vehicle that, noted prior Southern District intentionally control and movements amendment, held statute’s cases that there that, in performs alone or combina acts support was sufficient evidence to a convic- tion, power the motive of will set in motion driving tion for while where a intoxicated discussing the vehicle. Id. After these asleep defendant was found behind the cases, the held the court then that Wiles engine running wheel the the defendant’s actions in that case did not on, lights though the in even vehicle was driving” “physically constitute because the park, theory that the on the defendant was motion, “they vehicle in but did was not in a position regulate to the vehicle’s move- ‘operating’ fall under term of the broader suggested ment. The that these Id. court as defined in the aforementioned authori explain might cases what actions did Id. ties.” constitute a motor vehicle be- “operating” view, In is my opinion the Wiles some- cause it was sufficient defendant appears adopt it to troubling what in that had control.” physical “actual Id. in the the rationale found non-Missouri that court further asserted those cases cites, separate it have no cases which finding a lack of “actual control” control.4 But that identify cept did not what constituted actual vehicle, any 'operates intentionally does act or individual motor vehicle he "[A]n position any ... in the vehicle and or electrical when ... in makes use of mechanical movements, sequence manipulates, agency he will in to control its which alone or in set ” any machinery purpose, power the of the motor or that motion motive vehicle.’ the Wiles, manipulable any machinery (quoting from the Common other 26 S.W.3d at 441 230, Plowman, position Mass.App.Ct. affects or driver’s that could affect wealth v. 28 548 movement, (1990) (quoting the whether individ- vehicle’s N.E.2d Common [the 1280 ” Wiles, Uski, vehicle or not.’ 26 v. 160 305 ual] moves the wealth 263 Mass. N.E. Ducatt, (1928))). (quoting State S.W.3d at (1990)). Conn.App. 575 A.2d 708-710 Connecticut, Georgia and 4. The Massachu- 'operate' has a broader “[T]he word statutory the only setts did not have so as motion of the courts to include engage judicial histoiy “actual control” acts which the ma- vehicle but also that, driving while being part parcel intoxi- se- chinery of the vehicle alone or in Moreover, cases, quence, power cated as we do in Missouri. will in motion motive set Wiles, majority here both the Wiles court and the vehicle.” S.W.3d at State, seemingly the 1996 Flournoy Ga.App. overlook fact (quoting '' (1962)). removes the "ac- person amendment '[A] S.E.2d when, language deft- tual control” from the operates vehicle ... in the pun- intended to Legislature conduct the issue need not be addressed here because Rather, legislation conduct would not within the purpose Cross’ come ish. anyway. pur- utilized in those cases driving, definitions drunk and that prevent is to determining in must be borne mind pose noted, As the cases discussed WSes “operates.” what is meant the term (a) generally require person to be within a vehicle and able to control its move- case, claiming while majority this (b) ments, perform and that such just effectively incorporates opposite, combination, acts alone or in will set definition “actual control” into its power in motion the motive of the vehicle. turning It “operating.” holds off case, half in the Cross was headlights, when awakened vehicle and would not have been able to police shouting officers by three uniformed brake, it is at utilize the accelerator or so using “physical loud verbal commands and that he arguable least was not within stimulation,” within the ve- fully when not able to its movements. vehicle and control hicle, is now a vehicle suffi- however, in importantly, thinking More ciently permit pursuant a conviction Assembly about the evil the General goes beyond This far the facts 577.010. trying to address when it enacted our stat- Wiles, where there was evidence intoxicated, relating utes while driver’s the defendant seated trying prevent peo- clear that it was seat, body his entire within the ple on our in an highways wheel, right foot slumped over the with his condition, intoxicated those punish causing on the accelerator mind, if who do. With this even we idle, run at a fast and his left foot was Wiles, accept broad definition of in illumina- pedal, resulting the brake the manipulation ignition key of the to turn off Wiles, 26 lights. tion of the brake S.W.3d engine performing the is not an act case, present at 438. the these Unlike will, combination, or in alone set motion officer circumstances existed when the power the motive of the vehicle. a first observed Wiles and did occur as Contrary majori- to the assertion of the Moreover, result of his arrival. ty, an individual “engage” does not the Wiles, exist in the court did this evidence off, by turning of an automobile holding on it in specifically relied fact, doing and such an individual is permit a there was sufficient evidence to exactly the If opposite. turning off the juror the reasonable to find defendant “oper- were sufficient to constitute this set guilty. The court stated: “Under vehicle, ating” the motor it would of neces- facts, the trial court did not err sity turning mean that on the electrical judg- Defendant’s motion for overruling system “oper- to listen radio is also him for acquittal sentencing ment of and ating” passenger might the vehicle. A intoxicat- ‘operating’ a motor vehicle while in a waiting well do that while car for the at 441 ed in violation of 577.010....” Id. and, intoxicated, major- driver if under the added). (emphasis theory, guilty found of driv- ity’s could be Judiciary’s duty The is not to write or totally illogical while intoxicated. It is Rather, function re-write our statutes. of the and inconsistent with the intent statutory duty interpreting new and Legislature suggest manipu- the intent of language give is to effect to a vehicle for lation of device on a Harris, at driven, Legislature. 705 S.W.2d purpose preventing it from ascertain that intent from the 548. We purpose engage for a other than to vehicle, used in the statute. Baumruk language power motive of the constitutes 1998); Belt, 443, 446 964 S.W.2d driving while intoxicated violation of 416, 422-23 Moriarty, Clearly type such is not the of State 577.010. "driving” defines both. "operating” the definition section nition of as well as W.D.1996). case, (Mo.App. Legislature The the instant Cross was found vehicle, partially acted with a full a with its head- presumed to have aware- within complete knowledge pres- lights engine running. ness and of the on and the The law, judicial and including open. ent state of the driver’s side door was Rumble, legislative precedent. asleep, ground, with his feet on the his 942; Harris, legs lying at 705 S.W.2d at 548. Final- outside the torso ly, a statute should “never be construed in across the front seat. There was no one mooting a manner which results in the else inside the car but there was no evi- legislative changes legislature persons since the dence as to whether other committed a near the vehicle. While these facts would presumed is never have Harris, justify finding “actual useless act.” trol” of the vehicle under the old definition majority disregards foregoing construing “operates” case law rules, others, erroneously holds it, they “physically do not establish he was Legislature that when the amends a stat- un- motor vehicle” change deleting phrase ute there is no der the amended version of 577.001.1. application of the statute. When reasons, I foregoing For would re- statute, Legislature amends a it is judgment. the trial court’s verse presumed Legislature intended to existing some in the law. change effect HOWARD, STITH, LAURA DENYIR Wollard, 203; Bennett, S.W.2d NEWTON, HOLLIGER, JJ., concur amend a statute and S.W.2d 169. To in the dissenting opinion. accomplish nothing from the amendment Kilbane, meaningless would be a act. Legislature had amend if it did not

reason to application change

intend to Moreover, majority

statute. does not why Legislature explain

and cannot the statute if it phrase

would delete analyze cases

intended to allow courts to part was still phrase as if definitional Missouri, Respondent, STATE of the statute. Legislature previously, As noted SLAVEN, Appellant. T. John when it policy made determination that a could No. ED 77291. amended criminally longer punished, either Appeals, Missouri Court for driving privileges, simply denial of District, Eastern vehicle, with or being within a without Division Three. engine running, in an intoxicated condition. legitimate public pur- serves revision Nov. Thus, poses. Legislature was not en- Rehearing Transfer Motion for and/or meaningless in a act gaging useless 21, 2000. Supreme Denied Dec. Court major- 577.001.1as the amended to, fact, did in ity holds. It intended so, doing it was exer-

change the law.

cising constitutionally Legis- mandated changing the law em- prerogative

lative McKerrow, statute, Public De- Nancy. A. Asst. prerogative bodied in a fender, Columbia, MO, appellant. Judiciary. granted

Case Details

Case Name: State v. Cross

Court Name: Missouri Court of Appeals

Date Published: Nov 14, 2000

Citation: 34 S.W.3d 175

Docket Number: WD 57145

Court Abbreviation: Mo. Ct. App.