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City of Appleton v. Wink1/19/2000
his vehicle's engine shortly before Kramer arrived at the scene and at a time when he was under the influence of an intoxicant. Whether undisputed facts meet a legal standard is a question of law that this court reviews de novo. See Bahr v. State Inv. Bd., 186 Wis. 2d 379, 386, 521 N.W.2d 152 (Ct. App. 1994).
ANALYSIS
. Wisconsin Stat. § 346.63(1)(a) (1997-98) prohibits driving or operating a motor vehicle while under the influence of an intoxicant. "Driving" and "operating" are defined in § 346.63(3):
(a) "Drive" means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.
(b) "Operate" means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.
The legislature thus intended that § 346.63(3)(a) applies when a vehicle is in motion and (3)(b) controls when a vehicle is not in motion.
. Milwaukee County v. Proegler, 95 Wis. 2d 614, 626, 291 N.W.2d 608 (Ct. App. 1980), held that the definition of operate in Wis. Stat. § 346.63(3)(a) is clear and unambiguous. Proegler was found asleep in his car. Id. at 618. As in this case, the engine was running and the headlights and heater were on. We held that the definition of operate "applies either to turning on the ignition or leaving the motor running while the vehicle is in park." Id. at 626. The only material differences between Proegler and the present case are that Wink admittedly started the engine and was not asleep when Kramer encountered him.
. The circuit court was undoubtedly concerned that it not base a conviction upon a hypertechnical application of the law. Kramer testified that Wink's vehicle's front tires were over the top of the snow furrow and that its undercarriage was on the snowbank. The circuit court could thus have inferred that the vehicle was effectively immobilized. In Proegler, however, we observed that " he 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." Id. at 626. It is thus apparent from Proegler that the legislature intended that the term "operate" be given a broad definition and application. Consistent with this legislative intent and the precedent established in Proegler, this court applies the statute's plain meaning to conclude that Wink was operating. Accordingly, this court reverses the circuit court order and remands for further proceedings consistent with this opinion.
By the Court.- Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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