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State v. Prater9/24/2004
Shawn Prater appeals from a judgment of the Douglas County District Court, which affirmed the judgment of the Douglas County Court finding Prater guilty of driving while under the influence (DUI), in violation of an Omaha city ordinance.
SCOPE OF REVIEW
In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Brunken v. Board of Trustees, 261 Neb. 626, 624 N.W.2d 629 (2001). When analyzing a municipal ordinance, this court follows the same rule.
FACTS
At about 2:30 a.m. on August 26, 2001, Omaha police officers were called by a resident of an apartment complex who reported a man trying to break into her car in the parking lot. While investigating the possible break-in, Officer Tom Rummel observed Prater slumped over in the driver's seat of a different car. The car's engine was running. Rummel's partner tapped on the car window, but Prater did not respond. Rummel testified that Prater had "spill coming from his mouth down onto the floor." When Prater began to respond, Rummel reached into the car and took the keys from the ignition while his partner asked Prater to step out of the car and provide identification and registration. Prater appeared to have been drinking and showed signs of impairment. Prater was arrested and transported to police headquarters, where he was given an Intoxilyzer test.
A city complaint was filed in Douglas County Court charging Prater with violating Omaha Municipal Code (OMC), ch. 36, art. III, § 36-115 (1998) by unlawfully operating or being in actual physical control of a motor vehicle while under the influence. Prater stipulated that the Intoxilyzer test was completed in ac-cordance with statutory requirements and that the results indicated that his breath alcohol level was .171.
The apartment complex where Prater was arrested is made up of four 12-unit buildings. There are no gates or fences surrounding the property. A sign posted near the parking lot states: "Private parking[.] Unauthorized vehicles will be towed at owners expense." Guests of apartment residents are allowed to park in the lot and are not required to sign in. Maintenance persons also park in the lot.
The county court found Prater guilty of DUI, first offense, and placed him on supervised probation for 365 days. Prater was ordered to pay a fine of $400 and not to drive for 60 days.
Prater appealed to the Douglas County District Court, which affirmed. The district court concluded that OMC § 36-115 was parallel to Neb. Rev. Stat. § 60-6,108 (Reissue 1998), the latter of which provides that the DUI statute "shall apply upon highways and anywhere throughout the state except private property which is not open to public access." (Emphasis supplied.) The district court agreed with the county court that the area where Prater was arrested was open to public access even though it was not open to public parking. It concluded that the facts presented at trial established that the private parking lot was open to public access and that OMC § 36-115 applied to the parking lot. The district court found that the guilty verdict was supported by competent evidence. Prater appeals.
ASSIGNMENT OF ERROR
Prater assigns six errors, which can be summarized to assert that the lower courts committed reversible error in interpreting OMC § 36-115 to apply to the private parking lot in question.
ANALYSIS
The applicable version of OMC § 36-115 stated:
It shall be unlawful for any person to operate or be in the actual physic
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