Opinion
(6643)
The defendant, who had been arrested in the parking lot of a convenience store, moved to dismiss the charge of operating a motor vehicle while under the influence of intoxicating liquor on the ground that that parking lot was not "open to public use" within the meaning of the statutory ( 14-212) definition of the term "parking area" used in the statute ( 14-227a) under which he was charged. The trial court, relying on this court's decision in State v. Boucher, 11 Conn. App. 644, granted the motion, and the state, with the permission of the trial court, appealed. The decision relied on by the trial court having been reversed in State v. Boucher, 207 Conn. 612, the case was remanded with direction to reinstate the information.
Argued October 18, 1988
Decision released November 15, 1988
Information charging the defendant with the crimes of operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle while his license was suspended, and with failure to return his operator's license, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, where the state entered a nolle prosequi to the charge of operating under suspension and the defendant pleaded guilty to the charge of failure to return his license; thereafter, the court, Stengel, J., granted the defendant's motion to dismiss the charge of operating under the influence and rendered judgment thereon, from which the state, on the granting of permission, appealed to this court. Error; further proceedings.
Eileen McCarthy Geel, certified legal intern, with whom was Harry Weller, deputy assistant state's attorney, for the appellant (state).
Vincent J. Giedraitis, public defender, for the appellee (defendant).
The trial court granted the defendant's motion to dismiss a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes 14-227a (a). The state, with the permission of the presiding judge, has appealed. We find error.
General Statutes 14-227a. "OPERATION WHILE UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) OPERATION WHILE UNDER THE INFLUENCE. 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."
The parties agree that on July 9, 1987, the defendant was arrested in a parking lot at a 7-Eleven store in Vernon and charged with operating a motor vehicle while under the influence of intoxicating liquor. The defendant moved to dismiss the charge on the ground that "[s]ection 14-227a prohibits the operation of motor vehicles in parking lots for more than ten vehicles which are `open to public use'. . . ." The defendant relied on this court's opinion in State v. Boucher, 11 Conn. App. 644, 528 A.2d 1165 (1987), in which we agreed with the trial court that a parking lot used exclusively by Midas Muffler employees and customers was not "open to public use" as that term is used in General Statutes 14-212 (5).
General Statutes 14-212 provides in pertinent part: "DEFINITIONS. Terms used in this chapter shall be construed as follows unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the general assembly: . . . (5) `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. . . ."
Our holding in State v. Boucher, supra, was reversed and the case was remanded with direction to reinstate the information. State v. Boucher, 207 Conn. 612, 619, 541 A.2d 865 (1988). The Supreme Court held that "[a] place is `public' to which the public is invited either expressly or by implication to come for the purpose of trading or transacting business." Id., 616. It concluded that the legislature, in enacting 14-227a and 14-212 (5), intended to extend the prohibition against operating a motor vehicle while under the influence of intoxicating liquor to any parking area for ten or more cars which "the public" is invited or permitted to use. Id., 619. This conclusion is dispositive of this appeal.
The defendant suggests that the parking area in front of the 7-Eleven store was for six vehicles and separate from the balance of the parking area, and therefore that the rationale of the Supreme Court in State v. Boucher, supra, is not applicable to this case. Aside from the fact that he did not present this as an alternate ground for sustaining the decision of the trial court, see Practice Book 4013(a)(1), the facts upon which this claim is based have not yet been presented to and determined by the trial court.