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City of Billings v. Peete11/24/1986
Rehearing Denied January 13, 1987.
Submitted September 18, 1986.
Raymond K. Peete, defendant, was convicted in Billings City Court of violating Section 61-8-401(1)(a), MCA, driving while under the influence of alcohol. He appealed his conviction to Yellowstone County District Court. Defendant filed a motion to dismiss, alleging that he was not operating a motor vehicle "upon the ways of the state open to the public," as required by the statute. The motion to dismiss was denied. Defendant was again convicted of violating Section 61-8-401(1)(a), MCA. Defendant appeals the District Court's failure to grant his motion to dismiss. We affirm.
Defendant's motion to dismiss was accompanied by a stipulation of facts. The following facts are taken from that stipulation:
Defendant was arrested at approximately 10:30 p.m., August 2, 1984, in the Northern Hotel parking garage for driving while under the influence of alcohol.
The parking garage is a privately owned and operated facility. It consists of five levels of parking spaces. The spaces on the ground level and the below-ground level are rented on a monthly basis. The top three levels are available to the general public for an hourly fee. After 5:00 p.m., the general public may also use unoccupied spaces on the two lower levels.
Use of the garage is controlled by employees of the owner of the garage. The parking attendant occupies a ticket booth located between the entry and exit lanes of the facility. Patrons entering the garage receive a ticket from the attendant who is stationed at the ticket booth. Upon exiting the parking facility, the patron must stop at the ticket booth, show the attendant his ticket and pay the appropriate fee. All patrons use the same entry and exit. However, monthly renters need not stop at the booth.
Defendant rents a parking space on the below-ground level. On the night he was arrested, defendant was exiting the lowest level via an up-ramp when his vehicle collided with a motorcycle parked in an area near the ramp reserved for bicycles and motorcycles. Defendant advised the parking attendant of the accident and was subsequently arrested.
The sole issue raised on appeal is:
Did defendant, Raymond Peete, operate a motor vehicle "upon the ways of the state open to the public", within the meaning of Section 61-8-401, MCA, when he operated his vehicle within a privately owned and operated parking garage in Billings, Montana?
The statute under which defendant was charged, Section 61-8-401, MCA, states:
"Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 for any person who is under the influence of:
"(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public."
"Ways of this state open to the public" is defined at Section 61-8-101(1), MCA, as "any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public."
Defendant contends that the Northern Hotel's parking garage is neither "adapted and fitted for public travel" nor "in common use by the public" because there is only one way to access the facility, access is achieved only upon obtaining a ticket from the parking attendant and use of the facility requires payment of a monthly or hourly fee. The City of Billings contends that the statute refers to any parking area, including private parking garages; or, in the alternative, that the garage is "adapted and fitted for public trave
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