Fenimore v. State9/30/2003
Appellant, GaryBoyd Fenimore, was convicted in Oklahoma County District Court, Case No. CF2001-5650 , of Driving Under the Influence, inviolation of 47 O.S.2001, § 11-902 (Count 1), of with Driving While PrivilegeRevoked, in violation of 47 O.S.2001, § 6-303(B) (Count 2). A bench trial was held before the HonorableRay C. Elliott, District Judge, on October 21, 2002. Judge Elliott found Appellant guilty of both Counts and set punishmentat two (2) years imprisonment on Count 1 and at one (1) years imprisonment onCount 2. Judgment and Sentence wasimposed on December 11, 2002, and Judge Elliott ordered thesentences to be served concurrently. From the Judgment and Sentences imposed, Appellant perfected thisappeal.
Appellant raises a single proposition of error:
Because Mr. Fenimore was on private property at the time hewas stopped, and had only been observed driving on private property, no crimewas committed and therefore, Mr. Fenimore's conviction must be reversed withinstructions to dismiss.
Afterthorough consideration of the entire record before us on appeal, including theoriginal record, transcripts, briefs and exhibits of the parties, we havedetermined that Appellant's proposition has merit for the reasons set forthbelow.
The trial court should have sustainedAppellant's motion to quash and demurrer, as the State's evidence did not proveAppellant committed an act which constituted a public offense. 22 O.S.2001, § 504(4). The stipulated evidence in this case does not establish thatAppellant's driving under the influence or that his driving while privilegerevoked occurred either on a highway, turnpike or public parking lot. Houston v. State, 1980 OK CR 63, 4, 615 P.2d 305, 306; 47 O.S.2001, §§ 11-101(A)(2), 11-902;6-303.
Thereare persuasive public safety/public policy reasons to hold differently. The operation of a motor vehicle while underthe influence of alcohol is an act which is dangerous to the public wherever itmay occur – whether in a trailer park, a parking lot, or in theprivately-maintained gated subdivisions across the metropolitan areas. However, until the Oklahoma legislature morebroadly defines those areas where driving under the influence is prohibited oruntil it does not restrict the actof driving under the influence to certain areas, this Court cannot sustain aconviction under the facts of this case where the State did not prove Appellantdrove his car while under the influence on a highway, turnpike or publicparking lot.*fn1
Rulesof statutory construction require criminal statutes be constructed strictlyagainst the State and liberally in favor of the accused. State v. Young, 1999 OK CR 14, ,989 P.2d 949, 952. Further, Courts willnot enlarge the meaning of words included in the statute to create a crime notdefined by that statute. Id. at 27, 989 P.2dat 955. The statute defining theoffense of driving under the influence, 47 O.S.2001, §11-902 does not extend theapplicability of that statute beyond highways, turnpikes, or public parkinglots. See also Houston, 1980 OK CR 63, 3-4, 615 P.2d at 306(interpreted public parking lots to include any parking lot adjacent to aright-of-way, or to which the general public has access).
Inan excellent article relative to the applicability of drunk driving statutes tospecific locations, the author notes that a number of States have broader, lessrestrictive, statutes than the Oklahoma statute. Okasinski, Applicability,to Operation of Motor Vehicle on Private Property, of Legislation MakingDrunken Driving a Criminal Offense, 52 ALR 5th 655 (1997). These broader statutes make the act ofdriving while intoxicated a criminal offense while on private roadways and onother private properties. 52
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