State v. Blowers , 31 Utah Adv. Rep. 42 ( 1986 )

ZIMMERMAN, Justice:

Defendants David A. Blowers and James J. Schofield appeal their convictions of driving under the influence of alcohol. The convictions resulted from an accident that occurred when defendants were drunk and riding horses. The circuit court found that the Utah drunk driving law applied to persons riding horses and convicted both men of driving under the influence of alcohol under section 41-6-44 of the Code. Defendants appealed to the district court, which upheld Schofield’s conviction but reversed Blowers’ conviction and ordered a new trial. Both Blowers and Schofield have appealed. We dismiss Blowers’ appeal because this Court has no jurisdiction over the matter since no final judgment has been entered. U.C.A., 1953, § 78-3-5 (Repl.Vol. 9A, 1977, Supp.1985). We reverse Schofield’s conviction.

Schofield and Blowers spent the afternoon of April 23, 1983, drinking beer. At about 7:30 p.m., they rode their horses down a Kaysville street toward a summer pasture. Schofield’s sister rode on Blowers’ horse behind Blowers. Conflicting evidence indicates either that two small boys frightened the horses or that Blowers and Schofield began racing. In any event, as the horses ran, Schofield’s sister fell from Blowers’ horse and suffered a severe concussion. Following a police investigation of the accident, Schofield was charged and convicted in circuit court of driving a vehicle while he was under the influence of alcohol in violation of section 41-6-44(l).¹

Before this Court, Schofield contends that his conviction denies him due process of law because the statute under which he was convicted did not give him adequate notice that being intoxicated while riding a horse was a crime. We agree.

A criminal statute “must be sufficiently clear and definite to inform persons of ordinary intelligence what their conduct must be to conform to its requirements and to advise one accused of violating it what constitutes the offense with which he is charged.” Greaves v. State, Utah, 528 P.2d 805, 807 (1974) (citations omitted); accord State v. Packard, 122 Utah 369, 374, 250 P.2d 561, 563 (1952); State v. Owens, Utah, 638 P.2d 1182, 1183 (1981). A statute that does not meet this test is invalid under both the due process clause of the fourteenth amendment to the federal constitution, see, e.g., Connally v. General Construction Co., 269 U.S. 385, 391-93, 46 S.Ct. 126, —, 70 L.Ed. 322 (1926), and its counterpart in article I, section 7 of the Utah Constitution. Cf. State v. Bradshaw, Utah, 541 P.2d 800, 802 (1975).

Section 41-6-44, under which Schofield was convicted, prohibits operation of a “vehicle” while under the influence of alcohol. The motor vehicle code defines a “vehicle” as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.” U.C.A., 1953, § 41-6-1(58) (Repl.Vol. 5A, 1981). This definition cannot be legitimately read to include horses.

The operative word in the statute is “device.” No dictionary we have examined defines “device” to encompass an animal, and section 41-6-1 uses the word “device” in its usual sense. Both due process and common usage restrain us from torturing the definition of a “vehicle” to include a horse. Therefore, to convict Schofield of violating section 41-6-44 would deny him due process.

The State attempts to avoid this result by relying on a few cases from other jurisdictions where horses have been found to be included within the definition of the word “vehicles” for the purposes of applying specific statutes. They include People v. Szymanski, N.Y.City Crim.Ct., 311 N.Y. S.2d 120, 63 Misc.2d 40 (1970), Conrad v. Dillinger, 176 Kan. 296, 270 P.2d 216 (1954), and State v. Stewart, 57 Ariz. 82, 111 P.2d 70 (1941). Stewart and Szyman-ski involved a wagon and team and a stage coach, respectively; therefore, they are readily distinguishable because horse-drawn carts fall within the accepted definition of “vehicles,” while horses alone do not. We simply reject Conrad as a strained attempt to reach a desired result.

The State also attempts to uphold Schofield’s conviction by arguing that section 41-6-15 somehow makes section 41-6-44 applicable to cases where intoxicated persons ride horses. Section 41-6-15 provides: “Every person riding an animal or driving any animal-drawn vehicle upon a roadway is subject to this chapter, except those provisions which by their nature can have no application.” This is a classic example of a criminal statute that is too vague in its prohibitions to survive due process challenge. It is impossible for anyone to determine, even upon thoughtful reflection, which portions of the vehicle code the legislature thought should apply to animals and animal-drawn vehicles and which should not. In fact, the very wording of the section suggests that the legislature had no firm idea as to what it meant. Section 41-6-15 does not give anyone proper notice of the conduct it intends to proscribe and certainly does nothing to cure the vagueness problems inherent in section 41-6-44.

Dismissed as to Blowers; reversed as to Schofield.

HALL, C.J., and STEWART and DURHAM, JJ., concur.

1 . Section 41-6-44(1) states in pertinent part:

It is unlawful and punishable as provided in this section for any person with a blood alcohol content of .08% or greater by weight, or who is under the influence of alcohol or any drug or the combined influence of alcohol and any drug to a degree which renders the person incapable of safely driving a vehicle, to drive or be in actual physical control of a vehicle within this state.

(Emphasis added.)