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City of Appleton v. Wink1/19/2000
APPEAL from an order of the circuit court for Outagamie County: HAROLD V. FROEHLICH, Judge. Reversed and cause remanded.
The single issue raised on appeal is whether sitting behind the wheel of a vehicle with the engine running and the heater and headlights on constitutes operation of that vehicle. The City of Appleton appeals the circuit court's order dismissing an operating while under the influence of an intoxicant and a related status offense after a trial to the court. The issue at trial was whether Paul Wink was operating his motor vehicle. The circuit court concluded, in substance, that it would not find operation on the basis of a running engine. This court holds that the undisputed evidence that Wink was seated behind the steering wheel of a vehicle with the engine running and headlights illuminated requires a finding that he operated the vehicle. Therefore, we reverse the judgment and remand for further proceedings.
FACTS
. The circuit court heard the following evidence. Wink operated a vehicle that became stuck in a snowbank. Wink testified that he had not consumed alcohol before driving his vehicle. After Wink and an alleged passenger unsuccessfully tried to extricate the vehicle, they walked to Wink's parents' residence to retrieve the passenger's four-wheel drive truck. They intended to use the truck to remove Wink's vehicle from the snow. Once at the residence, Wink decided that due to the pain from a previous injury, he would simply call a tow truck. Wink testified that the pain became intense and when he could not find his pain medication, he substituted alcohol. He drank "at least four inches off [a two liter] bottle." About forty-five minutes later, Wink returned to his vehicle.
. Upon arriving at his vehicle, two cars came upon the scene in brief succession. The second car appeared to be a squad car driven by someone out of uniform. When Wink asked the driver to call a tow truck, the driver told Wink to wait in his car. Wink entered his vehicle and started the engine. Shortly thereafter, the second car left and sergeant Donald Kramer responded to the scene. When he arrived, he observed a vehicle stuck in a furrow of snow made by a snowplow. The back tires were in the roadway. The vehicle's engine was running, its lights were on and Wink was seated behind the steering wheel.
. After a brief encounter, Kramer determined that "maybe [Wink] had too much to drink to be driving his vehicle." Wink told Kramer that a friend had been driving when the vehicle became stuck in the snow. Kramer testified to his observations that suggested Wink was the sole occupant of the vehicle and, implicitly, that Wink had not left it. Another officer testified that he searched Wink's vehicle and discovered a large bottle of brown-colored-liquor. "A good portion of [the contents] was gone."
. The City began its closing argument by stating:
Your Honor, given the stipulated facts that, that the primary issue here as the City sees it, is operation. And as there is a body of law, it's pretty well founded that operation is something as simple--
. At which point the circuit court interjected:
Let's not talk about the technical turning on the car engine argument, if that is going to be the conviction, because it's not going to be. That is not going to be the basis of any conviction that I find today.
The court, after marshaling the evidence, concluded that the parties had tried the case to "a draw" and that therefore the City had failed to prove its case by clear, satisfactory and convincing evidence.
STANDARD OF REVIEW
. It is undisputed that Wink started
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