Steven Cox, Respondent v. Director of Revenue, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Steven Cox, Respondent v. Director of Revenue, Appellant Case Number: WD59189 Handdown Date: 05/31/2002 Appeal From: Circuit Court of Miller County, Hon. Kenneth L. Oswald Counsel for Appellant: James Artelle Chenault Counsel for Respondent: Timothy R. Cisar Opinion Summary: The director of revenue appeals the court's judgment setting aside the suspension of Steven Cox's driving privilege. The court set aside the suspension because it found that the director failed to meet her burden of proof. On appeal, the director argues that she proved, by a preponderance of the evidence, that the officer who arrested Cox had probable cause to believe that Cox was driving while intoxicated. REVERSED AND REMANDED. Division Three holds: (1) The court erroneously applied the law by finding that the director failed to make a prima facie case for license suspension. The plain and ordinary meaning of the word "operating," as that term is used in the driving while intoxicated statutes, is to cause to function. Applying this definition to the first prong of the director's prima facie case, the facts and circumstances known to the arresting officer were sufficient to cause a prudent, cautious and trained police officer to reasonably believe that Cox was intoxicated and, as the sole occupant of the vehicle with access to the mechanisms that operate the vehicle, had turned on the engine and was the cause of the engine's continued functioning. Therefore, the director proved by a preponderance of the evidence that the officer had probable cause to arrest Cox for driving while intoxicated. (2) The director also proved, by a preponderance of the evidence, the second prong of the prima facie case--that Cox had been operating the vehicle while he had a blood alcohol content of more than .10 percent. The only evidence in the record is that Cox had turned on the car's engine at some point, either before or after he arrived in the parking lot, and

was the sole cause of the vehicle's continued functioning after he became intoxicated past the .10 percent-level of intoxication.

by deleting the phrase "being in actual physical control" from the definition of "driving," the legislature was aware of the decisions of Missouri's appellate courts in upholding DWI convictions and license suspensions and revocations on the basis of the "actual physical control" language where the defendant or licensee was sitting in a motionless vehicle with the engine running. In subsequently deleting that phrase from the definition, it is clear that the legislature intended to change the law so that an individual no longer could be punished, either criminally or by denial of driving privileges, for simply being in control of a vehicle while in an intoxicated condition. (2) The majority's definition of "operating" is over-expansive and effectively incorporates those actions previously considered to constitute actual physical control of a vehicle, and the majority thereby renders the legislature's amendment meaningless. (3) At most, the evidence reflects that Cox was in "physical control" of a running vehicle while intoxicated, an act that no longer should be considered to be driving while intoxicated under the amended statute. (4) Even were I to accept the majority's reasoning and analysis regarding the definition of "operating," which I emphatically do not, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the court's judgment, Cox cannot be deemed to have been "operating" the vehicle, that is, as defined by the majority, "causing it to function." The evidence showed he merely had been drinking and sleeping in the front seat of a vehicle parked in a private parking lot with its engine running but out of gear and at some point thereafter became legally intoxicated. The functioning of the vehicle would not be affected in any way if Cox were not seated, drinking or asleep therein. (5) The court was not required to infer that Cox last engaged the engine. The evidence presented at trial failed to establish that anyone else had been in the car and failed to indicate whether any other people were in the area of the parked car. (6) The court's decision was supported by sufficient evidence, was not against the weight of the evidence and did not erroneously declare or apply the law and, accordingly, should be affirmed. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: REVERSED AND REMANDED. Ulrich, P.J., concurs. Ellis, J., dissents in separate opinion. Opinion:

The Director of Revenue appeals the trial court's judgment setting aside the suspension of Steven Cox's driving privilege. The trial court set aside the suspension because it found that the Director failed to meet her burden of proof. (FN1) On appeal, the Director contends that she proved, by a preponderance of the evidence, that the officer who arrested Mr. Cox had probable cause to believe that Mr. Cox was driving while intoxicated. This court finds that the Director established that the officer had probable cause to arrest Mr. Cox for driving while intoxicated, and that Mr. Cox was driving while intoxicated. Because the Director made a prima facie case for license suspension, and Mr. Cox failed to rebut the prima facie case, the judgment of the trial court setting aside the suspension is reversed, and the cause is remanded to the trial court to enter an order affirming the suspension. Factual and Procedural Background At approximately 10:20 P.M. on August 15, 1998, Officer James A. Upton of the Eldon Police Department responded to a report that a green Cadillac was parked in the parking lot of a gas station at Business 54 and Highway 87 with its light on, the engine running, and no one around. When Officer Upton arrived at the lot, he found the Cadillac's engine running and its transmission in the park position. Officer Upton walked up to the driver's side of the car and saw Mr. Cox sitting in the driver's seat. Mr. Cox was either sleeping or unconscious. In an attempt to wake up Mr. Cox, Officer Upton knocked on the window. Mr. Cox awoke and was very disoriented. Officer Upton identified himself to Mr. Cox and asked Mr. Cox if everything was all right. Mr. Cox told Officer Upton that he was just sitting there. As Mr. Cox spoke, Officer Upton noticed a strong smell of alcohol on Mr. Cox's breath. Officer Upton also noticed a glass, which was three-quarters full of a brown liquid, sitting between Mr. Cox's legs. When Officer Upton shone his flashlight on Mr. Cox, the officer saw that Mr. Cox's eyes were very bloodshot and watery. Officer Upton then asked Mr. Cox to shut off the car's ignition and get out of the car so that Officer Upton could perform field sobriety tests on him to make sure that he was able to drive. Mr. Cox turned off the ignition, got out of the car, and agreed to take the field sobriety tests. Officer Upton administered the horizontal gaze nystagmus, the one-leg stand, and the walk-and-turn field sobriety tests on Mr. Cox. Mr. Cox's performance on the horizontal gaze nystagmus test indicated that he was intoxicated. After Mr. Cox was unable to perform the one-leg stand and the walk-and-turn tests, Officer Upton arrested Mr. Cox for driving while intoxicated and transporting an open container of an alcoholic beverage. Officer Upton took Mr. Cox to the police station, read him his Miranda(FN2) rights, and asked Mr. Cox to take a breath test to check his blood alcohol

content. Mr. Cox consented, and the test indicated that Mr. Cox had a blood alcohol content of .18%. Mr. Cox admitted, after he was arrested, that he had been operating his vehicle. He also admitted to Officer Upton that he started drinking whiskey and iced tea at 6:00 P.M., while in his vehicle on Lake Y10. He claimed to have had three drinks. Mr. Cox responded, "No," when asked the time he stopped drinking. Mr. Cox told Officer Upton that in the three hours prior to his arrest at 10:49 P.M., he had been boat riding and sleeping. Mr. Cox said that he "pulled off the road" at 9:00 P.M., and had been sleeping since that time. Mr. Cox was charged with driving while intoxicated and ticketed for transporting an open container of an alcoholic beverage. Also at that time, pursuant to section 302.520, RSMo 2000,(FN3) Officer Upton served Mr. Cox with a notice that his driving privilege was suspended. Section 302.520 provides that if a law enforcement officer obtains chemical test results while the arrested person is still in custody, and the results show a blood alcohol content of "ten-hundredths of one percent or more by weight," the officer, acting on behalf of the Department of Revenue, "shall serve the notice of suspension or revocation personally on the arrested person." Section 302.505.1 sets forth when the Department can suspend or revoke a driver's license for alcohol-related driving offenses: The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was "driving while intoxicated" in violation of section 577.010, RSMo, or "driving with excessive blood alcohol content" in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two- hundredths of one percent or more by weight. (FN4) After receiving notice of the suspension of his driving privilege, Mr. Cox requested an administrative hearing. Following the administrative hearing, the Department of Revenue issued findings of fact and conclusions of law sustaining the suspension of Mr. Cox's driving privilege. Mr. Cox then filed a petition for a trial de novo in the Circuit Court of Miller County. The trial court did not hold an evidentiary hearing. Instead, the parties agreed to submit the case on the Director's records, which included Officer Upton's report, subject to Mr. Cox's objection that the records were inadmissible because Officer Upton lacked probable cause to arrest him. On September 13, 2000, the trial court entered its judgment in which it found the Director failed to meet her burden of proof. The court ordered the Director to reinstate Mr. Cox's driving privilege. The Director filed this appeal.

Standard of Review This court will affirm the trial court's judgment in a driver's license suspension case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Weiland v. Dir. of Revenue, 32 S.W.3d 628, 630 (Mo. App. 2000) (en banc) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Ordinarily, this court gives considerable deference to the trial court's credibility determinations. Mitts v. Dir. of Revenue, 57 S.W.3d 357, 359 (Mo. App. 2001). Where, as here, the evidence is uncontroverted or admitted, this court does not defer to the trial court's judgment, because the issue is a legal, and not factual, one. Molthan v. Dir. of Revenue, 32 S.W.3d 643, 645 (Mo. App. 2000). If the evidence is not disputed, the issue is the legal effect of the evidence. Id. The Trial Court's Decision Erroneously Applies the Law In the Director's sole point on appeal, the Director argues that, contrary to the trial court's judgment, she made a prima facie case to revoke Mr. Cox's license under section 302.505.1. To make a prima facie case for suspension or revocation under this statute, the Director must show, by a preponderance of the evidence, that: "(1) the licensee was arrested upon probable cause to believe that [the licensee] was driving in violation of an alcohol related offense and (2) that the licensee had been driving with a blood alcohol content of .10 percent or greater." Weiland, 32 S.W.3d at 630. The first issue, then, is whether the Director met the first part of the test by establishing, by a preponderance of the evidence, that Officer Upton had probable cause to arrest Mr. Cox for driving while intoxicated. The standard for probable cause to arrest is an objective one, as probable cause "exists when the facts and circumstances would warrant a person of reasonable caution to believe that an offense has been or is being committed." Testerman v. Dir. of Revenue, 31 S.W.3d 473, 476 (Mo. App. 2000) (citations omitted). "Thus, whether probable cause existed to arrest the [licensee] is determined in relation to the circumstances as they would have appeared to a prudent, cautious, and trained police officer." Id. (citations omitted). By its terms, section 302.505.1 incorporates the definition of "driving" set forth in it section 577.001.1, since section 302.505.1 requires probable cause of driving while intoxicated. "Driving" is defined in section 577.001.1 as "physically driving or operating a motor vehicle." The Director first argues that there was sufficient circumstantial evidence that Mr. Cox had been physically driving while in an intoxicated condition and, therefore, Officer Upton had probable cause to arrest Mr. Cox for driving while intoxicated. The Director contends that the circumstantial evidence in this case is similar to that found in Baptist v. Lohman, 971 S.W.2d 366 (Mo. App. 1998). In Baptist, Mr. Baptist was observed sitting in the driver's seat of his truck with his eyes closed. Id. at 367. The truck was parked in a convenience store parking lot, and the convenience store

clerk watched Mr. Baptist's truck for thirty to forty-five minutes, during which time no one got into or out of the truck. Id. The clerk then called the police. Id. When a police officer arrived at approximately 1:30 A.M., the officer saw Mr. Baptist slumped over in the driver's seat. Id. The keys to the truck were in the ignition, the engine was running, and the transmission was in the neutral position. Id. When Mr. Baptist awoke, he failed field sobriety tests. Id. After he refused to take a breath alcohol test, Mr. Baptist was arrested for driving while intoxicated, and his license was suspended for refusing to take a breath test. Id. (citing section 577.041). The circuit court affirmed the suspension. Id. On appeal, the Eastern District of this court held that the circumstantial evidence was sufficient to establish reasonable grounds(FN5) for the officer to believe Mr. Baptist had been "operating a motor vehicle" while intoxicated. Id. at 368. The Director argues that "[i]t would seem difficult to distinguish this case from Baptist." It is true that both Mr. Cox and Mr. Baptist were found asleep and sitting alone in the driver's seats of their vehicles, and both of their vehicles were stopped in commercial parking lots with their engines running. In Baptist, however, a convenience store clerk noted the presence of Mr. Baptist's vehicle and then watched Mr. Baptist sleep in his vehicle for approximately an hour and a half before the police arrived. The clerk saw no one get into or out of the vehicle. After stating these facts, the court stated that "[a]n officer may have reasonable grounds to arrest for driving while intoxicated, even when his evidence of 'actual driving' is based on circumstantial evidence." Id. Here, there was no circumstantial evidence available to Officer Upton prior to the arrest to indicate that Mr. Cox physically drove to the gas station. There was also no evidence available to Officer Upton prior to the arrest as to how long Mr. Cox was parked in the gas station parking lot before Officer Upton found him. Additionally, the Baptist opinion does not indicate that there was any evidence from which the inference could have been made that Mr. Baptist consumed alcohol after he arrived in the convenience store parking lot. In this case, Mr. Cox had a glass that was 3/4 full of a brown liquid sitting between his legs. From this evidence, it could be inferred that Mr. Cox had access to and consumed some alcohol after he arrived in the parking lot. The Director also contends that the circumstantial evidence of physically driving is similar to that found sufficient to establish probable cause to arrest for driving while intoxicated in Delzell v. Lohman, 983 S.W.2d 633 (Mo. App. 1999). In Delzell, a restaurant manager noticed Mr. Delzell's car in the restaurant's parking lot. Id. at 634. Because the manager had not seen Mr. Delzell's car when she was standing in front of the restaurant a few minutes earlier, the manager determined that the car had only recently arrived in the parking lot. Id. Mr. Delzell was sitting in the driver's seat and appeared to be asleep or unconscious. Id. The keys were in the ignition and engine was running, so the manager

reached in and turned off the engine. Id. The manager then called the police. Id. When the police officer arrived, Mr. Delzell was still sitting asleep in the driver's seat with the keys in the ignition. Id. The officer noticed a piece of a bush on the grill of Mr. Delzell's car, which indicated that Mr. Delzell had run over a bush. Id. The restaurant manager told the officer what she had observed. Id. When Mr. Delzell failed field sobriety tests, the officer arrested Mr. Delzell for driving while intoxicated, and Mr. Delzell's driver's license was suspended. Id. After the suspension of Mr. Delzell's driver's license was set aside in a trial de novo, however, the Director appealed. Id. at 633. On appeal, the Southern District of this court reversed, finding that the circumstantial evidence was sufficient to support a finding that the officer had probable cause to arrest Mr. Delzell for driving while intoxicated. Id. at 634-35. Although the Director relies upon Delzell, the circumstantial evidence of physically driving, which supported a finding of probable cause to arrest for driving while intoxicated in that case, was greater than that presented in this case. Mr. Delzell was found asleep or unconscious in the driver's seat of his vehicle only minutes after his vehicle arrived in the parking lot, leaving little room for any inference that he consumed any alcohol after arriving in the lot. Additionally, the fact that Mr. Delzell's car appeared as though it had run over a bush supported the inference that he had consumed the alcohol before he arrived in the parking lot and had been physically driving in an intoxicated condition. Like the drivers in the Baptist and Delzell cases, Mr. Cox was found asleep and alone in the driver's seat of a car that was parked in a commercial lot with its engine running. Unlike in those cases, however, there was not sufficient evidence known to the officer prior to the arrest to support a reasonable belief that Mr. Cox physically drove himself to the lot, nor was there sufficient evidence known to the officer prior to the arrest of how long Mr. Cox had been in the lot or what he did after he arrived in the lot. Additionally, while there was no evidence in either Baptist or Delzell that the drivers in those cases had alcohol available to them after arriving in the parking lots, there was evidence in this case from which an inference could be made that Mr. Cox drank at least some alcohol after he arrived in the lot. The circumstantial evidence of Mr. Cox's physically driving was insufficient to support a finding that Officer Upton had probable cause to arrest Mr. Cox for driving while intoxicated. The Director next argues that even if the circumstantial evidence was insufficient to support a finding of probable cause that Mr. Cox had been physically driving the car while intoxicated, the direct evidence established probable cause to believe that Mr. Cox was "operating" the car in Officer Upton's presence. The Director contends that Mr. Cox's act of sitting in the car with the engine running, and then turning off the ignition at Officer Upton's request, constituted "operating" the car within the meaning of the statute. In making this argument, the Director relies on this court's en banc case of State v. Cross, 34 S.W.3d 175 (Mo. App. 2000).

In Cross, a police officer was dispatched to investigate a report of a person who was slumped over in the seat of a car parked near a road. Id. at 177. When the officer arrived, he "found the car parked with its engine running and its headlights on." Id. The driver's side door was open, and Mr. Cross' legs were hanging out of the car, touching the ground. Id. Mr. Cross was "asleep or unconscious, lying across the front seats." Id. Initially, the officer was unable to awaken Mr. Cross. Id. Two other officers arrived, however, and were able to awaken Mr. Cross by shaking him and yelling at him. Id. at 177-78. After Mr. Cross was awakened, he "turned off the car's headlights and engine and removed the keys from the ignition." Id. at 178. Mr. Cross was arrested, and later convicted, of driving while intoxicated. Id. In determining whether the evidence was sufficient to establish that Mr. Cross was "operating" his car within the meaning of section 577.001.1 and, therefore, in violation of the driving while intoxicated statute, the majority in Cross noted that "[t]he primary rule of statutory construction is to ascertain what the General Assembly intended and to give effect to that intent." Id. The intent of the legislature is ascertained from the language used in the statute. Pierce v. Dir. of Revenue, 51 S.W.3d 888, 890 (Mo. App. 2001). Only when the statute is ambiguous, or when it leads to an illogical result, may courts look past the plain and ordinary meaning of the statute and apply principles of statutory construction. Dir., Dept. of Pub. Safety v. Murr, 11 S.W.3d 91, 97 (Mo. App. 2000). To determine if a statute is unambiguous, "the standard is whether the statute's terms are plain and clear to one of ordinary intelligence." Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). The plain and ordinary meaning of the statute is generally derived from the dictionary. Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999). The dictionary definition of "operate," which was used by the majority in Cross, is "'to cause to function[.]'" 34 S.W.3d at 178 (quoting Webster's Third New International Dictionary of the English Language Unabridged 1581 (1971)). Applying this definition, the majority of this court held that the evidence established that Mr. Cross was "operating" the vehicle, and, thus, met the definition of driving under section 577.001.1. Id. at 181. In so ruling, the majority stated: First, [Mr.] Cross' acts of being in a car with the engine running and then turning off the car's engine and headlights constituted operation of his car. Second, even if this were not the case, the state presented ample circumstantial evidence to establish that he started the car's engine and put it into operation. That operation was continuing when [the officer] found him. That [Mr.] Cross was not causing the car to move--that it was parked--and that his legs were hanging out the door was of no consequence. He still was operating the car--that is, causing it to function. Id. This court, in Cross, found that the act of sitting in the driver's seat of a vehicle and turning on or off the car's engine was "operating" the vehicle. Unlike Cross, however, the facts of this case do not allow consideration of Mr. Cox's

action in turning off the engine of the vehicle since that action was taken at the direction of Officer Upton, who had reason to believe that Mr. Cox was intoxicated at the time.(FN6) Although the facts of this case are more limited than those of Cross, the ruling of Cross answers the question whether the legislature, by its use of the term "operating," intended to criminalize or attach administrative consequences to the act of turning on a car's engine and then sitting, while intoxicated, in a motor vehicle parked on a commercial lot with the engine running. The majority in Cross found that Mr. Cross was continuing to operate his vehicle when he was found by the police. His action, at that time, of sitting asleep in a parked car with the engine running was found to be continuing to cause the car to function and, thus, was "operating" the vehicle under section 577.001.1. Id. at 181. The dissent argued in Cross, as it does in this case, that, in reaching this conclusion, the majority in Cross was ignoring the intent of the legislature when it removed the term "actual physical control" from the definition of "driving" in

1. See id. at 186-87 (Ellis, J., dissenting). Before 1996, section 577.001.1 defined "driving" as "physically driving or

operating or being in actual physical control of a motor vehicle." Section 577.001.1, RSMo 1994. The dissent argues that the legislature intended to eliminate the factual circumstances of all prior cases where the driver's actions were found to constitute actual physical control. As was discussed in Cross, the cases under the pre-1996 version of the statute did not distinguish between the terms "operating" and "actual physical control" because the actions which constituted actual physical control were also always "operating." 34 S.W.3d at 183. If actual physical control were proved, then the driver's actions always fell under section 577.001.1, RSMo 1994. When all three terms--"physically driving," "operating," and "actual physical control"-- were included in the definition of "driving," the terms would have been intended by the legislature to have different meanings. See Mo. Prop. & Cas. Ins. Guar. Ass'n v. Pott Indus., 971 S.W.2d 302, 305 (Mo. banc 1998) (stating that, when interpreting a statute, "each word, clause, sentence and section of [the] statute should be given meaning"). It was not necessary to examine the parameters of "operating," however, as long as the driver's actions fit within the statutory definition of "actual physical control." Therefore, the cases prior to the amendment of the statute to remove "actual physical control" do not articulate the boundaries between that term and "operating." The dissent is correct that when the legislature amended the statute to remove the term "actual physical control," it intended to change the scope of the definition. See Hagan v. Dir. of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998) (stating that "[w]hen the legislature amends a statute, the amendment is presumed to have some effect"). Clearly, the legislature intended to limit the application of the statute by removing the term "actual physical control." The error in the dissent's analysis, however, is in the scope of the remaining terms in the

statute. The remaining terms are "physically driving" and "operating." Although the dissent argues that the legislature intended to eliminate all cases that found the driver's actions constituted actual physical control, because of the overlap between the definitions of "actual physical control" and "operating" in the pre-1996 statute, the effect of that conclusion would virtually eliminate all cases where the drivers' actions qualified as "operating." The only cases remaining are those where the driver was "physically driving," that is, putting the vehicle in motion. To find that the legislature intended to limit the scope of the current statute to only those actions that constitute "physically driving" is contrary to the rule of statutory construction that all words in a statute are to have meaning. The legislature left the term "operating" in section 577.001.1. In reaching its conclusion that Mr. Cross' actions fit within the definition of "operating," the majority of this court noted the rule of statutory construction that all words or terms within a statute are to be given meaning. Cross, 34 S.W.3d at 182. By including both the terms "operating" and "physically driving," the legislature intended for them to have different meanings. Id . The only meaning this court can give the term "operating," without a specific definition by the legislature, is its plain and ordinary meaning, which is to cause the vehicle to function. Id. at 181. This is consistent with the way other jurisdictions have defined the term "operating" in their driving while intoxicated statutes. For example, the Connecticut appellate court has determined that an intoxicated person "operates" a motor vehicle in violation of Conn. Gen. Stat. section 14-227a (a) (2001), where, "while in the vehicle and in a position to control its movements, [the accused] manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver's position that affects or could affect the vehicle's movement, whether the accused moves the vehicle or not." State v. Ducatt, 575 A.2d 708, 710 (Conn. App. Ct. 1990). In Ducatt, the intoxicated driver was unconscious in the driver's seat of his car, which was parked in a parking lot with the engine running. Id. at 709. The court in Ducatt rejected the defendant's claim that "operating" requires the intent to move the vehicle, stating that "[i]t is idle to suggest that a significant difference exists between a drunken motorist who starts the motor of his car with the intent of moving the car, and a drunken motorist who starts his car with no such intent." Id. at 710. This is so because the fact "[t]hat a severely intoxicated person does not intend to move a motor vehicle the engine of which he has started provides no assurance that the vehicle will in fact remain stationary." Id. The Connecticut appellate court has applied Ducatt's definition of "operating" in other cases involving persons who were found asleep in the driver's seat of a parked vehicle with the engine running. See State v. Angueira, 725 A.2d 967, 969-70 (Conn. App. Ct. 1999); State v. Marquis, 589 A.2d 376, 377 (Conn. App. Ct. 1991).

Courts in Massachusetts have used a similar definition of the term "operating" in applying that state's driving under the influence statute, Mass. Gen. Laws ch. 90 section 24 (2002). In Commonwealth v. Sudderth, 640 N.E.2d 481, 482 (Mass. App. Ct. 1994), the defendant was found "asleep in a reclined position in the driver's seat of a stationary car legally parked" with the engine running. The appeals court held that the driver was operating the car, because "'[a] person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.'" Id. at 482-83 (quoting Commonwealth v. Uski, 263 Mass. 22, 24, 160 N.E. 305 (1928)). Specifically, the court found that a person operates a vehicle "'by starting its engine or by making use of the power provided by its engine.'" Id. at 483 (quoting Commonwealth v. Ginnetti, 400 Mass. 181, 184, 508 N.E.2d 603 (1987)). Because the defendant was in the driver's seat with the engine running, the court in Sudderth held that a reasonable inference could be drawn that the defendant had intentionally started the engine, and had fallen asleep while the engine was running. Id. The court further held that "[t]he defendant's intention after occupying the driver's seat is not an element of the statutory crime." Id. This definition of "operating" was recently applied by the Supreme Judicial Court of Massachusetts in Commonwealth v. Eckert, 728 N.E.2d 312, 319 (Mass. 2000). Nevertheless, the dissent contends that when the legislature removed the phrase "actual physical control" from section 577.001.1, it was expressing its intent not to criminalize or attach administrative consequences to the actions of an individual who leaves a bar or other drinking establishment and decides to "sleep it off" in that person's car rather than to drive home, and who turns on the engine and leaves it running while sleeping. The dissent argues that there are valid policy arguments for the legislature to intend this limitation on the application of the driving while intoxicated statute. It is tempting to accept this position because the action of the legislature in deleting the term "actual physical control" indicates that it may have intended a more limited meaning of "operating." The impediment to adopting this position is that there is nothing within the definition of the term "operating" that allows this court to draw that line. The term "operating" does not include within it an intention to drive or preparation to drive, versus causing the vehicle to function with no intention to drive. It would be sheer speculation for this court to determine how the legislature intended to limit the application of the word "operating." Hampton v. Hampton, 17 S.W.3d 599, 602 (Mo. App. 2000) (stating that when interpreting statutes, "[i]t is not the place of this court to surmise what the legislature intended to say or inadvertently failed to say"). In addition, there are competing policy issues concerning enforcement of the law. If there is engrafted upon the term "operating" some additional act besides turning on the vehicle's engine or implementing the continued running of the

engine, law enforcement officers would have to wait until an intoxicated individual created an imminent peril by putting the vehicle in motion before the officer could arrest the individual for driving while intoxicated. By waiting until the intoxicated individual took action to put the vehicle in motion, the danger to society would be greatly increased. See Ducatt, 575 A.2d at 710. The weighing of these policy issues is for the legislature, not the court. The court's role is to give effect to the intent of the legislature, as demonstrated by the plain and ordinary language of the statutes, not to decide, on its own, which is the better policy. If our legislature intended to limit the term "operating" in section 577.001.1, it knew how to do so. The legislature adopted a definition in Chapter 302 that indicates that it is possible to limit the scope of the concept of "operating." In section 302.010(15), the legislature defined the term "operator," for use in Chapter 302, to mean "every person who is in actual physical control of a motor vehicle upon a highway." If the scope of "operating" were limited under a definition like this, the actions of a driver that would qualify as "operating" would be limited to actions of the driver "upon a highway." Otherwise, in locations other than "upon a highway," the individual would have to be "physically driving" a vehicle, that is, putting the vehicle in motion, to be in violation of section 577.010. While section 302.010(15) demonstrates that it is possible to limit the scope of the term "operator," and that the legislature knows how to set such a limit, this court declines to adopt section 302.010(15)'s definition. First, the term defined is "operator." That term does not appear in section 302.505. Nor does that term appear in section 577.001.1, which is inherently incorporated into section 302.505, since section 302.505 requires probable cause of driving while intoxicated. Second, section 577.001.1 previously included the phrase "in actual physical control" but, as noted, that phrase was eliminated when the statute was amended in 1996. Therefore, to utilize the definition in section 302.010 of "operator" to fashion a definition of "operating" as used in section 577.001.1 would be contrary to the intention of the legislature when it removed the phrase "in actual physical control" from the definition of "driving." Further, the adoption of the concept in the definition in section 302.010(15) would be a significant modification of the scope of the driving while intoxicated statute, and changes of that magnitude should be left to the legislature. Applying the plain meaning of "operating" in section 577.001.1, to make a prima facie case for suspension, the Director first needed to establish, by only a preponderance of the evidence, that Officer Upton had probable cause to believe that Mr. Cox was causing the vehicle to function while in an intoxicated condition. The facts and circumstances which were known to Officer Upton prior to the arrest came from the dispatch report and from his own observations. From the dispatch report, Officer Upton learned that the green Cadillac had been parked in the parking lot of the gas station with the light on, engine running, and no one around. When he arrived in the lot, Officer Upton observed Mr. Cox, sleeping or

unconscious, seated in the driver's seat of the green Cadillac, its engine was running, and its transmission was in park. Mr. Cox was alone and intoxicated. He had sole access to the mechanisms that cause the vehicle to function. A prudent, cautious, and trained police officer could reasonably believe that Mr. Cox, as the sole occupant of the vehicle with access to the mechanisms that operate the vehicle, had turned on the engine and was the cause of the engine's continued functioning. See Sudderth, 640 N.E.2d at 483. Thus, a prudent, cautious and trained police officer could reasonably believe that Mr. Cox was operating the vehicle. The Director satisfied the first prong of the prima facie case for license suspension. Applying the plain meaning of "operating" to the second prong of the prima facie case for license suspension, the Director needed to establish, again by only a preponderance of the evidence, that Mr. Cox had been causing the vehicle to function while he had a blood alcohol content of more than .10%. Mr. Cox admitted to Officer Upton that he had been operating the vehicle, and Mr. Cox stipulated that his blood alcohol content at the time of his arrest was .18%. The dissent argues, however, that there was no evidence that Mr. Cox caused the vehicle to function by turning the engine on while he was intoxicated, because a reasonable inference could be made that Mr. Cox consumed some alcohol after the car was parked in the lot, and that by finding otherwise, this court is "bending over backward to draw inferences contrary to the judgment." The dissent also argues that it does "not believe that the trial court was even required to infer that Mr. Cox, as opposed to any other individual that may have been in the car while it was in the parking lot, was the one that engaged the engine." Finding that Mr. Cox, and no one else, caused the vehicle to function while Mr. Cox was intoxicated is the only conclusion the evidence supports, however. Reinert v. Dir. of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995). There was no evidence that anyone else was with Mr. Cox at any time and, in fact, the evidence was that Mr. Cox had turned on the engine and was the sole cause of the vehicle's continued functioning. Mr. Cox admitted to Officer Upton that he had been sleeping since 9:00 P.M., the time, in his words, "when I pulled off [the] road" and into the gas station parking lot. (Emphasis added.) The dispatch report to which Officer Upton responded stated that no one was around the running vehicle, and Officer Upton did not report anyone else being in or around the vehicle. Any inference that someone else other than Mr. Cox engaged the vehicle's engine and left Mr. Cox in the gas station parking lot is wholly unsupported by the evidence. As for whether Mr. Cox was intoxicated when he was causing the car to function, the evidence was that Mr. Cox told Officer Upton that he started drinking whiskey and iced tea at 6:00 P.M., while he was in his vehicle on Lake Y10. Between 6:00 P.M. and 9:00 P.M., Mr. Cox drove from Lake Y10 to the gas station parking lot at Business 54 and Highway

87 where, he said, he pulled off of the road and fell asleep. Even if this court infers that Mr. Cox was not at the .10% level of intoxication when he pulled into the parking lot and that he drank more alcohol before falling asleep, the only evidence in the record is that Mr. Cox had turned on the engine at some point, either before he arrived in the parking lot or after he arrived in the parking lot, and was the sole cause of the vehicle's continued functioning after he became intoxicated past the .10% level of intoxication. Therefore, the Director established, by a preponderance of the evidence, that Officer Upton had probable cause to arrest Mr. Cox for driving while intoxicated, and that Mr. Cox was driving the car while intoxicated. The Director made a prima facie case for license suspension. The trial court erroneously applied the law by finding otherwise. Because the Director made a prima facie case for license suspension, the burden was on Mr. Cox to rebut the Director's prima facie case. Turrell v. Mo. Dep't of Revenue, 32 S.W.3d 655, 657 (Mo. App. 2000). The evidence in the record, to which the parties stipulated, does not rebut the Director's prima facie case. The judgment of the trial court setting aside the suspension of Mr. Cox's driving privilege is, therefore, reversed, and the cause is remanded to the trial court to enter an order affirming the suspension. Footnotes: FN1.The Director of Revenue at the time the judgment was entered was male. The current Director is female, so this court will use the feminine pronoun when referring to the Director. FN2.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). FN3.All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise indicated. FN4.Sections 302.505 and 302.520 were amended in 2001 to lower the blood alcohol concentration level threshold in these statutes from ten-hundredths of one percent to eight-hundredths of one percent. Sections 302.505.1 and 302.520.1, RSMo Supp. 2001. Because the offense in this case occurred in 1998, however, the prior versions apply. FN5.A suspension for refusal to take a breath test requires that the arresting officer have reasonable grounds to believe the driver was driving while intoxicated, however, "'[r]easonable grounds' is virtually synonymous with probable cause." Baptist, 971 S.W.2d at 368. FN6.Compare Collins v. Dir. of Revenue, 2 S.W.3d 164, 167 (Mo. App. 1999) (stating that equitable estoppel did not preclude suspension of driver's license, and there was no outrageous conduct of police, where there was no evidence that the police officer was aware of licensee's intoxicated condition when he told licensee to "get in his truck and leave," licensee did so, and licensee was subsequently arrested for driving while intoxicated). Separate Opinion:

S.W.3d 175 (Mo. App. W.D. en banc 2000), which will be discussed infra. As importantly, however, even if I were to accept the majority's reasoning and analysis regarding the definition of "operating" as used in the definition of "driving" set forth in section 577.001.1, which I emphatically do not, viewing the evidence and all reasonable inferences drawn

therefrom in the light most favorable to the trial court's judgment, Respondent cannot be deemed to have been "operating" the vehicle, that is, as defined by the majority, "causing it to function." Maj. Op. at 11. The facts of this case establish at most that Cox was in "actual physical control" of the vehicle in which he was found. Unfortunately, from the majority perspective, section 577.001.1 was amended by the General Assembly in 1996 by deleting the phrase "being in actual physical control" from the definition of the word "driving" so that "a motorist may no longer be found to be driving while intoxicated merely because he is in 'control' of a running automobile." Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo. App. E.D. 1998). The majority's decision to the contrary completes the judicial amendment of section 577.001.1, begun by the majority in Cross, to again include the phrase "being in actual physical control" in the definition of the word "driving," notwithstanding the Legislative amendment deleting that phrase.(FN1) The burden of proving that Respondent was "operating" the vehicle rested with Appellant, who was required to establish by a preponderance of the evidence that Respondent was "driving" a vehicle pursuant to one of the circumstances set forth in section 302.505.(FN2) Molthan v. Director of Revenue, 32 S.W.3d 643, 646 (Mo. App. W.D. 2000). In this case, Appellant sought to prove that Respondent was "driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight." Section 302.505.1, RSMo Cum. Supp. 1998. "'A trial court's judgment in a driver's license suspension or revocation case must be affirmed on review, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.'" Hoyt v. Director of Revenue, 37 S.W.3d 356, 358 (Mo. App. W.D. 2000) (quoting Soval v. Director of Revenue, 2 S.W.3d 854, 856 (Mo. App. W.D. 1999)). "[W]here evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the trial court to resolve the factual issue." Molthan, 32 S.W.3d at 645. "So long as the trial court's determination is supported by substantial evidence, we will affirm, regardless of whether we would have reached the same result." Id. "[W]e must review the evidence and reasonable inferences drawn from the evidence in a light most favorable to the trial court's verdict." Kearney v. Director of Revenue, 999 S.W.2d 310, 313 (Mo. App. E.D. 1999). With regard to whether Appellant proved by a preponderance of the evidence that Mr. Cox had been "driving" while he was intoxicated, the record establishes that Respondent was sitting asleep in a car parked in a parking lot, that he had been drinking alcohol while in the parked car, and that the car's engine was running with the gear set in park. The majority concedes that the evidence was insufficient to establish that Mr. Cox had been "physically driving" the vehicle while intoxicated, however, the majority then inexplicably reaches the conclusion that the evidence establishes that Mr.

Cox was "operating" the vehicle. While section 302.505.1 does not define the term "driving," nor does it incorporate by its terms the definition provided in any other chapter as asserted by the majority, "the case law has applied the definition of 'driving' set forth in section 577.001.1, the analogous criminal DWI statute, when considering license suspension or revocation cases under section 302.505.1." Hoyt, 37 S.W.3d at 358-59. Prior to 1996, Section 577.001.1 provided that "[a]s used in this chapter, the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating or being in actual physical control of a motor vehicle." Section 577.001.1, RSMo 1994. Under this statutory language, prior to 1996, Missouri courts consistently upheld license suspensions and revocations and driving while intoxicated convictions where the licensee or defendant was sitting in a motionless vehicle with the engine running under the theory that the individual was in "actual physical control" of the vehicle. State v. Hoyt, 922 S.W.2d 443, 448 (Mo. App. W.D. 1996); Chinnery v. Director of Revenue, 885 S.W.2d 50, 53 (Mo. App. W.D. 1994); State v. Hollis, 800 S.W.2d 69, 71 (Mo. App. S.D. 1990); See also Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo. App. W.D. 1998); Gleason v. Director of Revenue, 859 S.W.2d 189, 190- 91 (Mo. App. W.D. 1993). Under the case law, "actual physical control" was determined to exist if a person was keeping a motor vehicle restrained or was in the position to regulate its movements and the vehicle was running. Hoyt, 922 S.W.2d at 447-48; State v. Dey, 798 S.W.2d 210, 212 (Mo. App. W.D. 1990) ("'[A]ctual physical control' of a vehicle simply means to be in a position to regulate the movements of a vehicle which has its engine running."). Our courts repeatedly relied upon the "actual physical control" language in upholding DWI convictions or license suspensions or revocations where an individual was found sleeping or passed out in a vehicle with the motor running. State v. O'Toole, 673 S.W.2d 25, 27 (Mo. banc 1984); Hoyt, 922 S.W.2d at 448; Stoltz v. Director of Revenue, 816 S.W.2d 711, 714 (Mo. App. W.D. 1991); Dey, 798 S.W.2d at 212; State v. Nickerson, 763 S.W.2d 716, 717 (Mo. App. E.D. 1989); Taylor v. McNeill, 714 S.W.2d 947, 948 (Mo. App. W.D. 1986). In 1996, the Missouri Legislature amended section 577.001.1 by deleting the phrase "being in actual physical control" from the definition. As the majority of this court did in Cross, 34 S.W.3d 175, the majority in this case chooses to ignore the clear intent of the legislature in removing this language from section 577.010.1 and defines "operating" in a fashion that undermines the legislative intent. The Legislature is presumed to have intended to effect a change in the existing law when it amends a statute, Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992), and to have acted with full knowledge and awareness of the present state of the law, including judicial and legislative precedent. State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984); State v. Harris, 705 S.W.2d 544, 548 (Mo. App. E.D. 1986). Accordingly, when it amended section

577.001.1 by deleting the "actual physical control" language, the Legislature was aware of the decisions of Missouri's appellate courts in upholding DWI convictions and license suspensions and revocations on the basis of the "actual physical control" language where the defendant or licensee was sitting in a motionless vehicle with the engine running. In deleting this language, it is clear that the Legislature intended to effect a change in the law so that a individual could "no longer be punished, either criminally or by denial of driving privileges, for simply being in control of a vehicle while in an intoxicated condition." Cross, 34 S.W.3d at 187 (Ellis dissenting). With the deletion of the "actual physical control" language from section 571.001.1, under the current statutory definition of "driving," "a motorist may no longer be found to be driving while intoxicated merely because he is in 'control' of a running automobile." Baptist, 971 S.W.2d at 368; See also, Cox v. Director of Revenue, 37 S.W.3d 304, 307 n. 4 (Mo. App. S.D. 2000) ("After the amendment of section 577.001 in 1996, . . . a motorist may no longer be convicted of DWI merely because he or she is in 'control' of a running vehicle."). The majority disregards the Legislature's intended effect in deleting the "actual physical control" language from the statute. Instead, as in Cross, the majority adopts an expansive definition of the term "operating" that effectively encompasses those actions previously considered to constitute actual physical control of a motor vehicle. In so doing, the majority interprets section 571.001.1 in a manner that renders meaningless the Legislature's amendment of the statutory language, thereby violating the well-established rule that statutes should "never be construed in a manner which results in the mooting of the legislative changes since the legislature is never presumed to have committed a useless act." Harris, 705 S.W.2d at 548. Clearly, the purpose of the legislation is to prevent drunk driving. That purpose must be borne in mind when assessing what the legislature meant by the term "driving." It is illogical and inconsistent with the intent of the Legislature to conclude that manipulating a device on a motor vehicle for the purpose of preventing it from being driven, or for a purpose other than to engage the motive power of the vehicle, constitutes "driving" under section 302.505.1. "[T]he Legislature made a policy determination when it amended section 577.001.1 that a person could no longer be punished, either criminally or by denial of driving privileges, for simply being within a vehicle, with or without the engine running, in and intoxicated condition." Cross, 34 S.W.2d at 192 (Ellis dissenting). "The revision serves the legitimate purpose of encouraging individuals who are concerned that they might be impaired to get off the roadway and stop, thereby enhancing the safety of the driving public." Id. at 187. The function of the judiciary is to interpret statutory language to give effect to the intent of the Legislature and not to write or re-write statutes. Harris, 705 S.W.2d at 548. As the majority of this court did in Cross, the majority in this case

has set aside its role as an impartial judiciary and assumed the policy-making role constitutionally reserved for the legislature. Under the amended definition of "driving," "a motorist may no longer be found to be driving while intoxicated merely because he is in 'control' of a running automobile." Baptist, 971 S.W.2d at 368; See also Cox, 37 S.W.3d at 307 n. 4. The evidence in this case established that Mr. Cox was sitting, asleep in a parked automobile with its engine running but out of gear. Accordingly, at most, the evidence reflects that Mr. Cox was in "physical control" of a running automobile while intoxicated, an act that should no longer be considered to be driving while intoxicated under the amended statute. By finding that Mr. Cox was "operating" the vehicle, the majority renders meaningless the Legislature's deletion of the "actual physical control" language from section 577.001.1 and wholly undermines the legislative intent. Furthermore, even applying the majority's over-expansive definition of "operating" a vehicle, a finding by the trial court that the Director failed to prove that Respondent had "caused the vehicle to function" after reaching the requisite blood-alcohol level is not against the overwhelming weight of the evidence. While the incident report filed by the arresting officer does indicate that Respondent responded, "Yes," when asked the form question: "Were you operating the vehicle?",(FN3) neither the question nor the answer to the question indicate when Respondent meant he had been "operating" the vehicle or what Respondent thought that term meant in responding affirmatively to that question. The incident report reflects that Respondent admitted having pulled off the road and subsequently fallen sleep at 9:00. The report indicates that Respondent claimed to have continued to drink alcohol and sleep in the car after that point until the officer arrived at 10:40 p.m. The report does not provide any insight into whether the car continued to run after Respondent pulled over, whether the ignition was manipulated at any point during that time, or whether anyone else was in the car during that time period. The officer's narrative report does not discuss any comments made by Respondent at all aside from noting that he agreed to perform the field sobriety tests and to take a breathalizer test, although it does reflect that Appellant had a partially full glass of brown liquid in his lap when the officer arrived. In light of the evidence before the trial court, as noted by the majority, a reasonable inference exists "that Mr. Cox had access to and consumed some alcohol after he arrived in the parking lot." Maj. Op. at 8. Accordingly, the evidence clearly supports a finding by the trial court that Appellant failed to prove that Respondent was intoxicated prior to the car being parked in the lot and that such a finding is not against the overwhelming weight of the evidence. While the evidence establishes that Respondent eventually reached the level of legal intoxication, "'[b]eing intoxicated while not driving is not a crime, and is not a basis for suspension of one's license.'" Molthan, 32 S.W.3d at 646 (quoting Hampton v. Director of Revenue, 22 S.W.3d 217, 220 (Mo. App. W.D. 2000)).

The evidence in this case merely establishes that Respondent was sitting, drinking, and sleeping in a parked car in a commercial parking lot with the engine running but out of gear. Even under the majority's over-expansive definition of "operating," Mr. Cox's acts of sitting, drinking, and/or sleeping in the car cannot be deemed to have "caused it to function" or to have been "causing it to function." The majority attempts to overcome this deficiency by holding that turning the ignition to a vehicle constitutes "operating" a vehicle and that the trial court was required to infer that Mr. Cox last turned the ignition because the incident report did not mention the presence of other people in the area. The majority then concludes that it does not matter whether Respondent was legally intoxicated when the ignition was engaged because an individual turning the ignition continues to "operate" the vehicle until the engine is disengaged, regardless of the individual's subsequent actions. I first take issue with the majority's efforts to view the lack of evidence regarding other people in the area as requiring the trial court to infer that no one else had been in the car or last engaged the engine. As argued by Respondent in his trial brief, Appellant failed to present any evidence establishing that Mr. Cox arrived alone in the car or that he remained alone in the car. Indeed, the officer's narrative report makes no reference to whether other individuals were in the parking lot, inside the gas station or otherwise in the immediate area.(FN4) Likewise, the report does not reflect that the officer ever asked Respondent if anyone else had been in the car. From this lack of any reference to other people in the area, the majority somehow concludes that the trial court was required to find that Respondent was alone in the car and that he was the one that last engaged the engine. In so doing, the majority erroneously views the evidence in the light most favorable to Appellant, draws an inference contrary to the trial court's judgment, and apparently concludes, as a matter of law, that no other inference could reasonably have been drawn from the evidence. Under our standard of review, we are required to view the evidence and reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Kearney, 999 S.W.2d at 313. Accordingly, the majority should not be bending over backward to draw inferences contrary to the judgment. The incident report does not mention other people in the area, but it also does not indicate a lack of people in the area. This lack of evidence simply does not establish by the overwhelming weight of the evidence that Respondent last engaged the ignition, and the trial court was not required to find that he had.(FN5) Furthermore, even assuming that Respondent last engaged the ignition, the record does not establish that he did so prior to reaching the level of legal intoxication. In order to overcome this problem, the majority concludes that "[e]ven if

this court infers that Mr. Cox was not at the .10% level of intoxication when he pulled into the parking lot and that he drank more alcohol before falling asleep, the only evidence in the record is that Mr. Cox had turned on the engine at some point, either before he arrived in the parking lot or after he arrived in the parking lot, and was the sole cause of the vehicle's continued functioning after he became intoxicated past the .10% level of intoxication." Maj. Op. at 21. In so doing, the majority holds that an individual that engaged a vehicle's ignition while it is parked continues to "operate" that vehicle until the ignition is disengaged, apparently continuing to do so even if that individual is asleep, moves to the back seat of the vehicle, or even leaves the vehicle. I simply do not believe that Respondent can be deemed to be "causing the vehicle to function" while he is simply sleeping and drinking therein while the vehicle is parked and out of gear. The majority fails to explain how Respondent's actions of sitting, sleeping, and/or drinking in a parked vehicle that was out of gear were "causing it to function." (FN6) Furthermore, the evidence supports an inference that Mr. Cox left the vehicle at some point between 9:00 p.m. and the officer's arrival at 10:20 p.m. The officer's narrative report reflects that he went to the gas station to investigate a car that had been observed in the parking lot of the gas station with the light on, engine running, and no one around. From this evidence, the trial court could reasonably have inferred that nobody, including Mr. Cox, was in or around the vehicle at the time the call was made to the police. By the time the officer arrived on the scene, Mr. Cox was back in the car, sitting, asleep in the driver's seat with a drink between his legs. Apparently the majority believes that Mr. Cox never stopped "operating" the vehicle and "continued to operate the vehicle," even while he was away from it and was not in control of it.(FN7) In short, from the evidence in the record, it is reasonable to infer that Mr. Cox reached the level of legal intoxication after the engine was engaged and after it was parked in the lot. Furthermore, I do not believe that the trial court was even required to infer that Mr. Cox, as opposed to any other individual that may have been in the car while it was in the parking lot, was the one that engaged the engine. Respondent was required to establish by a preponderance of the evidence that Mr. Cox was "driving" the vehicle while legally intoxicated, and the trial court determined that Respondent failed to meet this burden. In so doing, the trial court weighed the evidence and drew its own inferences therefrom. Where the evidence could support factual inferences or conclusions favorable to either party, it is up to the trial court to resolve the issue. Molthan, 32 S.W.3d at 645. "So long as the trial court's determination is supported by substantial evidence, we will affirm, regardless of whether we would have reached the same result." Id. The trial court was not required to draw the far-reaching inferences relied upon by the majority, and those inferences are certainly not so compelling that they establish that the trial court's judgment is against the overwhelming weight of the evidence.

The evidence in this case merely establishes that Respondent was sitting, drinking, and sleeping in a parked car in a commercial parking lot with the engine running but out of gear. Mr. Cox cannot be deemed by have been causing the vehicle to function through any of these acts. The functioning of the vehicle would not be affected in any way if Mr. Cox were not seated, drinking, or asleep therein. At the most, Mr. Cox was in "actual physical control" of the vehicle, an act that is no longer considered to constitute "driving" under the applicable statutes. Accordingly, the evidence presented in this case does not even establish that Mr. Cox was "operating" the vehicle under the majority's own definition. In the case at bar, as in Cross, the majority has exceeded the bounds of legitimate statutory interpretation, cast aside the intent of the legislature, and twisted the legislative will in establishing its own definition of "driving." Furthermore, applying the proper standard of review, the evidence is insufficient to establish that Mr. Cox was "operating" the vehicle under even the majority's definition of that term. The trial court's decision was supported by sufficient evidence, was not against the weight of the evidence, and did not erroneously declare or apply the law. Accordingly, I would affirm the decision of the trial court. Footnotes: FN1."The legislative power shall be vested in a senate and house of representatives to be styled 'The General Assembly of the State of Missouri.' " MO. CONST. art. III, section 1. "A careful reading of article [III, section 1] shows that the constitution assigns the General Assembly the single power and sole responsibility to make, amend and repeal laws for Missouri and to have the necessary power to accomplish its law-making responsibility. '[A]ll the power to make laws in the name and with the authority of its constituent elements--its citizens en masse--is lodged in the temporary Legislature, subject only to the restraining clauses of the Constitutions of the state and nation.'" State Auditor v. Joint Committee on Legislative Research, 956 S.W.2d 228, 230-31 (Mo. banc 1997). FN2.All statutory references are to RSMo 2000, unless otherwise noted. FN3.Following the latter question, the form calls for a destination to be filled in, however, that space was left empty. FN4.The incident report indicates the officer was responding to a call reporting a vehicle that had been left running in the parking lot with no one around. From this reference, it is reasonable to find that no one was in the area of the car when the call was made. This would include Respondent. However, the officer makes no reference to the presence of people other than Respondent in the area, or the lack thereof, upon his arrival at the parking lot. FN5.The majority attempts to establish a rebuttable presumption that, any time the State does not present evidence that anyone else was in or around a vehicle, a person was found in or near a running vehicle is conclusively deemed to be the individual who engaged the engine as a matter of law unless that individual affirmatively proves that someone else engaged the engine. In so doing, the majority improperly attempts to shift the burden of proof to the licensee. In essence, the majority has determined that a finding by the trial court that the Director failed to establish by a preponderance of the evidence that Mr. Cox was the one to engage the engine was against the overwhelming lack of evidence on the subject. FN6.As applied by the majority, an individual could be found to be driving while above the legal limit if he were to drive to a bar sober, leave his car running (thereby "continuing to operate" it), begin drinking inside the bar and ultimately reach the legal limit. Considered along with Cross, this individual would also be "operating" the vehicle if he realized he was too drunk to drive home and went out to turn off the car. FN7.Apparently, the majority would also conclude that Mr. Cox was "continuing to operate" the running vehicle if he had been found asleep with his drink in the gas station restroom. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.