"Sitting While Intoxicated" - A Punishable Offense?

Many people assume that operating a motor vehicle is synonymous with driving a motor vehicle. However, assumptions are dangerous, and this common misconception could very well lead to a conviction for operating a motor vehicle while intoxicated.

An operator of a motor vehicle is defined under Wisconsin statute as "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion." See Wis. Stat. sec. 346.63(3)(b). Wisconsin courts have interpreted this language in various ways depending on the factual underpinnings of each case. For instance, in Milwaukee Co. v. Proegler, the Wisconsin Court of Appeals upheld the judgment of conviction entered by the lower court, finding the defendant guilty of operating a motor vehicle while under the influence of an intoxicant. See Milwaukee Co. v. Proegler, 95 Wis.2d 614, 291 N.W.2d 608 (Ct. App. 1980).

In Proegler, the defendant was found sleeping behind the steering wheel of a pickup truck parked partially on the right emergency ramp of I-43. The keys were in the ignition, the motor was running, and the lights and heater were on. The automatic transmission shift lever was in the park position. The defendant later testified to having parked his vehicle and fallen asleep for a few hours before he was found by police. The results of a Breathalyzer test indicated that defendant's blood contained 0.2 percent by weight of alcohol.

In upholding his conviction, the court explained that "the prohibition against the "activation of any of the controls of a motor vehicle necessary to put it in motion" applies either to turning on the ignition or leaving the motor running while the vehicle is in "park."" The court based this interpretation on prior legislative action amending the statutes to distinguish between the terms operate and drive. The court expanded on this and stated, "The severity of Wisconsin's drunk driving law is intended to discourage individuals from initially getting behind the wheel of a motor vehicle while under the influence of alcohol." The court concluded that they could not condone a drunk driver's attempt to drive a car, encouraging the individual to pull over only if unable to continue operation of the vehicle.

However, in Village of Cross Plains v. Haanstad, which was decided by the Wisconsin Supreme Court in 2006, the court came to a different conclusion altogether. See Village of Cross Plains v. Haanstad , 288 WIs.2d 573, 709 N.W.2d 447(2006). In that case, the defendant was initially a passenger in a vehicle driven by another individual. After the driver parked and exited the vehicle, the defendant moved into the driver's seat while the ignition was still running. An officer spotted the vehicle, and defendant was subsequently convicted of operating a motor vehicle while intoxicated. In reversing the lower court's finding, the Wisconsin Supreme Court held that the defendant, who was sitting in the driver's seat of a parked vehicle with the engine running, was not "operating" the vehicle. In reaching this conclusion, the court considered circumstantial evidence, including the defendant's testimony that she did "nothing more than sit in the driver's seat with her feet and body facing the passenger seat, never touching or manipulating the gas pedal, steering wheel, or the keys which were in the ignition, or any of the other controls of the car."

The court also reconciled its holding with that of the Proegler case, explaining that in the latter, there was no question that the defendant had started the engine, thereby activating the controls necessary to put the vehicle in motion. The circumstantial evidence in that case proved that defendant operated his truck within the meaning of the statute. For instance, defendant admitted to driving the vehicle to its parking spot and leaving it running. In Haanstad, however, there was no circumstantial evidence that the defendant had recently operated the vehicle. Thus, the court stated that the real issue in Proegler was "whether the statute should be interpreted to penalize one who, having already started the engine, has the 'brains to get off the road.'" In contrast, the relevant issue in Haanstad was whether one who was merely sitting in the driver's seat of a parked vehicle and nothing more, was guilty of operating a motor vehicle as the term is used under Wisconsin Statutes section 346.63(b).

The important thing to remember is that sitting while intoxicated in the driver's seat of a motor vehicle may constitute operating a motor vehicle under the Wisconsin statute. In conclusion, these types of cases are fact-sensitive, but it is still possible for one to be convicted of operating a motor vehicle while intoxicated even though he or she may not have actually driven the vehicle.