In the trial of State v. Kirsch out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road. As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated. Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:
to exert personal effort to cause the vehicle to function.To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions). Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant indeed operated it. But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make). Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.
The 6th District Court of Appeals (Texarkana) affirmed the conviction.
The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:
Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free," the CCA held, "to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.
There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.
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6 comments:
Virginia courts have been grappling with the definition of "operate" for over 50 years. The term was originally defined as in “actual physical control” of the vehicle. More recently, the Supreme Court of Virginia clarified operation to mean “engaging the machinery of the vehicle which alone, or in sequence will activate the motive power of the vehicle.”
For sufficiency of the evidence on appeal, the definition given in this case is accurate, but Texas does not have a definition at the trial level. More discretion for the creative minds of the criminal defense lawyers.
How is "in a public place" defined?
Legally you can drive drunk all you wish on your back 40. When does private property become a "public place" for the purposes of this statute?
KBC - The link below, from a colleague's blog, has a good answer to your question.
http://roselawtx.wordpress.com/tag/texas-dwi-public-place/
Interesting case...as a prosecutor, I've dealt with this issue before and our judge left it up to the jury to decide. In the case I tried, the jury found that simply turning the headlights on constituted operating the vehicle. (Other circumstantial evidence - a couple "parked" in a secluded area - might have weighed on the jury's mind as well.)
BWB - thank you for that link.
It's a truly frightening abrogation of the basis for DWI laws, which was, ostensibly, to protect the public from drunk drivers while on the public ways.
Based on that revised definition, someone could be cited for public intoxication in one's own living room, based on it being a "public place" into which missionaries or neighbors might be invited.
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