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COURT OF
APPEALS DECISION DATED AND
RELEASED October
3, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1510-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KRISTI
M. HOGAN,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: STUART
A. SCHWARTZ, Judge. Affirmed.
DYKMAN,
P.J.[1] Kristi
M. Hogan appeals from an order revoking her operating privileges for one year
pursuant to § 343.305(10)(b)4, Stats.,
for refusing to submit to a blood test and a judgment convicting her of
operating a motor vehicle while under the influence of an intoxicant (OMVWI) in
violation of § 346.63(1)(a), Stats. Hogan argues that she was not operating a
vehicle upon premises held out to the public for the use of their motor
vehicles when she was arrested, and therefore § 346.63(1)(a) does not apply. We reject her argument and therefore affirm.
BACKGROUND
On
July 23, 1995, a University of Wisconsin police officer observed Hogan's
vehicle bumping against the parking stops in the service drive of a university
parking area. Access to the service
drive is restricted to service vehicles, emergency vehicles and motorcycles.
The
officer approached Hogan and noticed a strong odor of intoxicants coming from
the vehicle. Hogan admitted she had
been drinking alcoholic beverages, and the officer asked her to perform field
sobriety tests. Hogan exhibited signs
of being intoxicated, and the officer administered a preliminary breath test,
which gave results of .25 and .24 percent.
Hogan was arrested for operating a motor vehicle while under the
influence of an intoxicant in violation of § 346.63(1)(a), Stats.
Hogan
refused to submit to a chemical test.
The State issued a notice of intent to revoke her operating privilege,
and Hogan requested a refusal hearing.
At the December 20, 1995 refusal hearing, the court found that the
officer had probable cause to believe that Hogan was under the influence of an
intoxicant while operating a motor vehicle upon premises held out to the public
for use of their motor vehicles and revoked her operating privileges for one
year. At a March 18, 1996 bench trial,
the court found Hogan guilty of OMVWI.
Hogan appeals.
STANDARD OF REVIEW
To
determine whether the service drive was held out to the public for use of their
motor vehicles, we must apply a statute to a set of undisputed facts. This is a question of law, which we review de
novo. State ex rel. Stedman
v. Rohner, 149 Wis.2d 146, 150, 438 N.W.2d 585, 587 (1989).
DISCUSSION
Hogan
argues that the service drive was not held out to the public for use of their
motor vehicles because access was restricted to service vehicles, emergency
vehicles and motorcycles. We disagree.
Section 346.61, Stats., provides that in addition to being applicable on
highways, the drunk driving laws are "applicable upon all premises held
out to the public for use of their motor vehicles." In City of LaCrosse v. Richling,
178 Wis.2d 856, 860, 505 N.W.2d 448, 449 (Ct. App. 1993), we concluded that the
appropriate test for determining whether an area is held out to the public for
use of their motor vehicles "is whether, on any given day, potentially any
resident of the community with a driver's license and access to a motor vehicle
could use the [premises] in an authorized manner." Because the service drive was designated for
motorcycle parking, potentially any resident with a driver's license and access
to a motorcycle could use the premises in an authorized manner. A motorcycle is a motor vehicle. Section 340.01(32), Stats. Therefore, the
Richling test is satisfied.
In
addition, "there must be proof that it was the intent of the owner [of the
premises] to allow the premises to be used by the public." City of Kenosha v. Phillips,
142 Wis.2d 549, 554, 419 N.W.2d 236, 238 (1988). The fact motorcycles could park in the service drive proves that
the owner intended it to be used by the public. Therefore, the service drive satisfies the requirements of
§ 346.61, Stats.
Hogan
argues she was not using the service drive in an authorized manner because she
was not driving a motorcycle, and therefore the Richling test is
not satisfied. Hogan misconstrues Richling,
however. Richling does
not direct us to inquire whether the accused was using the premises in an
authorized manner; rather, we must determine whether potentially any
resident with a driver's license and access to a motor vehicle could use
the premises in an authorized manner.
Although Hogan was not using the service drive in an authorized manner,
she could have done so if she had access to a motorcycle and a license to drive
one.
Hogan
also argues that the service drive must be held out to the public for the use
of all motor vehicles, not just motorcycles, for the Richling
test to be satisfied. We disagree. Section 340.01(35), Stats., defines "motor vehicle" as "a vehicle
... which is self-propelled." In Lemon
v. Federal Ins. Co., 111 Wis.2d 563, 565-67, 331 N.W.2d 379, 380-81
(1983), the court concluded that a tractor with a backhoe on one end and a
loader on the other end is a motor vehicle within the definition of
§ 340.01(35). We doubt that the
legislature intended to allow people to drive drunk in all parking lots and
other areas not held out to the public for the use of backhoes and
loaders. Likewise, we doubt that the
legislature intended to allow Hogan to drive drunk in an area held open to the
public, but restricted to motorcycle access.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.