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STATE v. FISH6/14/1980
. 1979 Supp. 8-1567(a) and (b). The State maintains that the word "operate" is a broader term than is the term "drive" and includes acts of a person in a motor vehicle not involving the actual driving of the vehicle. Thus, the State argues, an intoxicated person, who starts the motor of an automobile and, thereafter, remains seated in the vehicle, has violated the provisions of K.S.A. 1979 Supp. 8-1567(a). The State points out there is no Kansas law defining the term "to operate" in the context of this statute. There are Kansas cases which discuss the term "driving" as used in the former statute, G.S. 1949, 8-530. The Kansas cases on the subject have assumed that proof of driving or movement of
the vehicle is required in order to sustain a conviction. In State v. Hazen, 176 Kan. 594, 272 P.2d 1117 (1954), the issue before the court was the sufficiency of the evidence to support the jury's conclusion that the defendant had driven the automobile while under the influence of intoxicating liquor. In Hazen, the defendant was found in a slumped position in the driver's seat and appeared to be in a daze. The automobile was parked in the center of the right-hand lane of traffic with the motor and lights turned off. While there was no direct evidence that the intoxicated defendant had driven the vehicle, the court reasoned that it could be inferred the defendant drove the car to the spot where it was found, since the vehicle was standing in the middle of the highway. For a similar case, see State v. Dill, 182 Kan. 174, 319 P.2d 172 (1957).
In other jurisdictions, statutes prohibiting "driving" under the influence of intoxicating liquor have generally been held applicable only in cases in which it is shown that the accused placed the vehicle in motion. Statutes which prohibit "operating" a motor vehicle under the influence of intoxicating liquor have generally been more liberally interpreted to include not only the act of driving but also such acts as starting the engine or activating the electrical or mechanical devices of the vehicle. There is an excellent annotation on the subject in 93 A.L.R.3d 7, where cases on the subject are discussed in depth and the various positions of the courts> are analyzed. Some jurisdictions give a broad interpretation to the term "operating" so as to cover all matters and things connected with the purpose and use of motor vehicles on the highways, whether they be in motion or at rest. At the other extreme are jurisdictions which hold that "operating" is synonymous with "driving" and require some actual movement of the vehicle.
Prior to 1971, Kansas statutes prohibited both habitual users of narcotic drugs and persons under the influence of intoxicating liquor to drive any motor vehicle within the state. See K.S.A. 8-530 (Corrick). In 1974 the legislature adopted the Uniform Act Regulating Traffic on Highways (K.S.A. 8-1401 et seq.). K.S.A. 8-530 (Corrick) was repealed in favor of K.S.A. 1979 Supp. 8-1567, which made it unlawful to operate any vehicle while under the influence of intoxicating liquor and also made it unlawful for any person under the influence of drugs to drive a
vehicle. It is the position of the State that the change in wording from "drive" to "operate" indicates a legislative intent to broaden the coverage of the act to make it a crime for an intoxicated person to turn on the car's engine, thus eliminating any requirement that the vehicle must actually be moved or driven by the intoxicated person.
At first blush, the argument of the State appears to be sound. Our problem, of course, is to determine the legislative intent. In determining legislative intent, we deem it desirable to consider together the vari
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