Thomas Herlihy, III, Wilmington, Deputy Atty. Gen., for the State of Delaware.
Raymond L. Becker, Wilmington, for defendant.
Defendant was arrested on April 27, 1960 for allegedly operating a motor vehicle while under the influence of intoxicating liquor, in violation of 21 Del.C. § 4111(a) as amended. That statute provides:
'(a) Whoever operates a motor vehicle while under the influence of intoxicating liquor or of any drug shall be fined, * * *, or imprisoned * * *.'
Defendant was first tried and found guilty in the Court of Common Pleas in and for New Castle County. Defendant appealed this conviction to this Court. The State and the defendant have agreed that the legal problem involved should be disposed
of prior to trial in the form of a motion to dismiss the information. A stipulation of facts was entered into and filed with the Court. From the stipulation the following facts appear.
Defendant was arrested on April 27, 1960, at approximately 2:00 A.M. The investigating officer, State Trooper Ralph Ruth, Jr., was summoned by Howard Seck of 1009 North Clayton Street, Wilmington, Delaware, to the intersection[53 Del. 585] of Memorial Drive and Bizarre Avenue, Garfield Park, New Castle County. Upon arrival there Trooper Ruth found a car standing in the middle of the intersection of Memorial Drive and Bizarre Avenue, Garfield Park, which highways are public highways. The car's engine was running and the lights were on. The defendant was slumped over the front seat. His hips and buttocks were seated behind the driver's side of the front seat of the car; his head and the rest of defendant's body were slumped horizontally on the front seat and generally to the right of the driver's side. No one else was in the car. His feet were on the floor of the car near the controls, but not on the controls.
Trooper Ruth attempted to arouse the defendant and for a time without success. The defendant was finally aroused by the Trooper's continued hollering at him. The defendant hollered back at one time and then fell back in an unconscious condition, but he was finally aroused sufficiently so that he got up. When asked to step out of the car he did so after first turning off the engine. It was evident to Trooper Ruth at this time that defendant had been drinking because of his unsteady condition. The defendant admitted drinking three beers but at no time did defendant admit driving the car on April 27, 1960.
Counsel for defendant argues that defendant may not be convicted of operating a motor vehicle while under the influence of intoxicating liquor under the stipulated facts, stressing that these facts do not show defendant was 'operating a motor vehicle while under the influence of intoxicating liquor.' It is argued that two elements are involved in 21 Del.C. § 4111(a) as amended, and in order for the State to prove defendant guilty of violating the statute, the State's evidence must cover both elements. These are:
1. That he be operating a vehicle upon a highway.
[53 Del. 586] 2. That he be under the influence of intoxicating liquor.
It is admitted that the facts in the case at bar satisfy the element that defendant may have been under the influence of intoxicating liquor, but defendant's counsel strenuously contends that there is no evidence that defendant was operating or had operated his automobile while intoxicated and so there are no facts to support the first element of the crime; it is argued that 'operating' means putting into or continuing in activity. Webster's Unabridged International Dictionary.
Defendant's counsel put much reliance on the holding of our Supreme Court in Rickards v. State, 6 Terry 573, 77 A.2d 199, where at page 203 it was decided, in effect, that our statute, Title 21, Del.C., § 701, authorizes police officers to arrest only upon view for violations of the motor vehicle code and not upon the belief that a crime had been committed. It is clear, says the defendant, from the stipulation of facts in the instant case, that the police officer never saw defendant 'operating' a motor vehicle and so defendant was arrested illegally, since the officer did not view the violation. Defendant, through counsel, insists that direct or positive evidence, rather than circumstantial evidence, is necessary to convict a defendant of operating a motor vehicle while under the influence of intoxicating liquor.
The State argues, on the other hand, the case at bar can be distinguished from Rickards v. State, since in that case, in which the defendant was charged with operating a motor vehicle while under the influence of
intoxicating liquor, the State Police Officer arrived on the scene about half an hour after an accident, and found defendant's car parked on the side of the highway, and the defendant asleep in an adjacent woods about 50 feet away.
The case sub judice says the State is stronger in that the defendant was found in the car with the engine running and the lights on; that the defendant was the only person in the car, and he was in the driver's seat on the front seat with his [53 Del. 587] feet in the proximity of the operating mechanisms of the car. The car itself, the State notes, was standing in a public highway and not parked on the side of the road, as appears in Rickards v. State.
It is first desirable to determine the precise and relevant holding of Rickards v. State to determine if that case is applicable and determinative. Counsel for that defendant in that case objected to the testimony of the arresting officers because it was claimed their evidence was illegally obtained and was violative of the constitutional guarantees against illegal search and seizure and against self-incrimination, in that there had not been a legal arrest.
The Supreme Court held that Rickards had been illegally arrested, 6 Terry at page 582, 77 A.2d at page 203, because the police officers had not viewed Rickards operating the car, and so the allegedly illegally obtained evidence should be excluded.
It is to be observed that when the arresting officers found Rickards he was not in the car but was asleep some 50 feet away from it. 6 Terry at page 576, 77 A.2d at page 201. The Supreme Court there noted:
'The only testimony offered by the state of his intoxicated condition is that of the police officers who testified as to what the defendant did while in custody, his general condition and the strong odor of alcohol on his breath.'
In a footnote, 6 Terry 576, 77 A.2d 201, the Supreme Court pointed out----
'* * * owner of the truck had no sense of smell and, consequently, could not testify as to an odor of alcohol about the defendant.'
Seemingly, the Supreme Court considered this inability to smell on the part of the owner of the truck to be of significance and so shall I.
[53 Del. 588] The facts of the case, 6 Terry at page 576, 77 A.2d at page 201, show----
'* * * that the defendant, driving his car on a highway of this state, drove it into the rear of a truck then parked on the side of the road. He then drove his car to a position in front of the truck and on the side of the highway, spoke to the owner of the truck, went into an adjacent woods for a distance of about fifty feet [and laid down] and went to sleep. * * *. The only testimony offered by the State of his intoxicated condition is that of the police officers * * * as to what defendant did while in custody, his general condition and the strong odor of alcohol on his breath.'
In the case at bar the following facts were obvious to the investigating officer as he arrived at the intersection of Memorial Drive and Bizarre ...