State v. Boucher

Hull, J.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a),¹ and failure to carry a registration in violation of General Statutes § 14-13. He was subsequently charged with failure to appear in violation of General Statutes § 53a-173. The defendant pleaded guilty to all charges except driving under the influence of intoxicating liquor (DUI). The defendant moved to dismiss the DUI charge claiming that the parking lot on which he was arrested was not “open to public use” in accordance with General Statutes § 14-212 (5).²

The trial court granted the defendant’s motion to dismiss and subsequently granted the state leave to appeal. The sole issue presented by the state’s appeal is whether the parking area where the defendant was arrested was “open to public use,” thus bringing the lot within the purview of General Statutes § 14-227a (a).

The facts of this case are uncontradicted. At the time of the defendant’s arrest in Manchester, he was sitting in a motor vehicle parked on a Midas Muffler parking lot with the motor running. The defendant does not contest that he was intoxicated at the time. Thus, the only question before the trial court on the charge of DUI was whether the Midas Muffler parking lot was “open to public use,” as defined by General Statutes § 14-212 (5). If the Midas parking lot was open to public use, then the defendant is susceptible to criminal prosecution for DUI.

At trial, the defendant presented evidence that the lot was used exclusively by Midas employees and customers and that large signs inform the public that non-customers who park on the lot are subject to being towed at the owner’s expense. From these facts, the trial court found (1) that the parking area was private, and (2) that the parking area was not “open to public use” as that term is used by the definitional section of the motor vehicle statute, General Statutes § 14-212 (5).

The relevant language of General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor ... in any parking area for ten or more cars . . . .” Only parking areas which are “open to public use with or without charge”; General Statutes § 14-212 (5); are covered by the DUI statute. The state argues that the trial court erred in finding the Midas parking area not “open to public use” and that the plain language “open to public use” as a modifier of “parking area” brings lots like the Midas lot within the reach of the drunk driving statute. We disagree.

The state claims that the plain language of General Statutes § 14-212 (5) includes the Midas parking lot, and that, even if the statute is not clear on its face, the legislative history indicates the intention to include shopping center parking lots.³ This is not dispositive of the issue presented by this case, however. The defendant does not contest the fact that private shopping center parking lots are covered by the statute. The defendant contends that the Midas parking area, which was limited to use by Midas customers and employees, did not serve the general public. This use is distinguished from off street parking at shopping centers where the user is encouraged to patronize a variety of stores.

The state does not dispute that the use of the Midas lot was limited to a restricted group. The sole question is whether the use by the restricted group is sufficient to constitute public use. A public use exists where the public has a right to receive and enjoy the benefit of the use. Oxford v. Beacon Falls, 183 Conn. 345, 347, 439 A.2d 348 (1981). Where the use is for a “limited number of persons, or a restricted group,” it is not a public use. Ballentine’s Law Dictionary (3d Ed.). The court must give each word and phrase in legislative acts meaning. State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); LaCroix v. Board of Education, 2 Conn. App. 36, 41, 475 A.2d 1110 (1984). “Open to public use” logically distinguishes malls and other shopping center parking lots from lots that are restricted to use by a discrete class, and where that restricted use is strictly enforced.

The Indiana Appellate Court faced a similar question in Bridgewater v. State, 441 N.E.2d 688 (Ind. App. 1982). In Bridgewater, the defendant was arrested for DUI while parked on a bank’s private parking lot. The court in Bridgewater found the bank parking lot open to public use because the bank acquiesced in the use of the lot by the general public after banking hours. No similar facts were presented by the state in this case. To the contrary, the defendant presented uncontradicted evidence that the lot was closed to the general public. Thus, the trial court could properly conclude that by giving the words “open to public use” their plain meaning; see Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979); this parking lot was not open for use by the general public.

We are not called on to determine the application of the definition of “parking area” to every possible factual situation. For the facts presented in this particular case, we find the trial court properly held that the Midas Muffler parking area was not open to public use. The court cannot, by construction, read into legislation provisions not clearly stated. State v. Baker, 195 Conn. 598, 602, 489 A.2d 1041 (1985); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984); Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 70, 485 A.2d 1311 (1984).

We thus conclude that the trial court correctly construed “open to public use” as used by General Statutes § 14-212 (5) to have a limited meaning not covering the Midas parking lot.

There is no error.

In this opinion Bieluch, J., concurred.

1 General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” (Emphasis added.)

2 General Statutes § 14-212 (5) provides: “ ‘Parking area’ means lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge. ” (Emphasis added.)

3 “In addition to lowering the blood alcohol content from .15 to .10, the bill does two other things that beef up our drunken driving statute: one, under present law, the only place you can be convicted of driving under the influence is on a public highway. The bill would extend that to parking lots where there is room to park more than ten cars. Now you know and I know that on such a parking lot, in the shopping centers certainly, a drunken driver is as big a menace if not more in that area than on the public highway.” 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2364-65, remarks of Representative John A. Carrozzella.