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STATE v. FISH6/14/1980
The opinion of the court was delivered by
This is an appeal by the State on a question reserved pursuant to K.S.A. 1979 Supp. 22-3602(b)(3). The defendant, Jack Leroy Fish, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of K.S.A. 1979 Supp. 8-1567 which provides in part as follows:
"8-1567. Driving while under influence of intoxicating liquor or drugs; penalties; revocation or restriction of driver's license; order placing conditions on license.
"(a) It is unlawful and punishable as provided in subsection (c) of this section for any person who is under the influence of intoxicating liquor to operate any vehicle within this state.
"(b) It is unlawful and punishable as provided in subsection (c) of this section for any person who is an habitual user of or under the influence of any narcotic, hypnotic, somnifacient or stimulating drug or who is under the influence of any other drug to a degree which renders such person incapable of safely driving a vehicle to drive a vehicle within this state. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection." (Emphasis supplied.) The question reserved and presented for determination requires a construction of the term "to operate" as used in section (a) of 8-1567. Simply stated the question propounded by the State is this: Is it a violation of K.S.A. 1979 Supp. 8-1567(a) for an intoxicated person to be in a motor vehicle with the motor running where there is no evidence, direct or circumstantial, that he drove the motor vehicle in that condition?
For the purpose of determining the question reserved, the facts are to be considered as undisputed. On the morning of March 10,
1979, defendant Fish was found in his motor vehicle parked off the highway at a community trash receptacle in Butler County by a citizen named Edgar Thiessen. Thiessen noticed that the windows were rolled up and that the defendant, the only occupant of the car, appeared to be asleep on the front seat. The motor was running with the gear shift of the car in "park." There was an open liquor bottle in the front seat. Thiessen tried, but was unable to arouse the defendant. Thiessen then turned off the ignition, left the car door ajar, and notified the highway patrol. Highway patrol trooper Hannah responded to the call. He awoke the defendant and requested his driver's license. Hannah noticed the difficulty defendant had in producing his driver's license and immediately suspected him of intoxication. Defendant was then arrested and later charged with operating a motor vehicle while under the influence of intoxicating liquor under K.S.A. 1979 Supp. 8-1567(a). We will assume that the evidence was sufficient to establish the defendant's state of intoxication. The State concedes that there is no evidence in the record to show that, at the time the defendant was observed by Thiessen and Hannah, he was driving (or moving) the car. Furthermore, there is no evidence that after he drank liquor at the trash receptacle, the defendant drove the vehicle. Assuming that the words "operating" and "driving" are synonymous and that some movement of the vehicle while under the defendant's control is needed to prove driving, the State concedes that the evidence in the case would not be sufficient to prove a violation of K.S.A. 1979 Supp. 8-1567(a).
On this appeal, the State requests this court to hold that there is a distinction between the terms "to operate" and "to drive" as used in K.S.A
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