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The Connecticut appellate courts have defined “operate” within the DUI statutes. A recent case stated:

Our Supreme Court … approved the following jury instruction in State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939): “[T]he statute [in question] refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this 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 the vehicle.”

State v. Ducatt, 22 Conn. App. 88, 90-91 (1990).

In Ducatt, the defendant was unconscious/sleeping in his parked vehicle, the engine running, with his arm wrapped around the steering wheel and his fingers curled around the gear shift lever.

[T]he controls of a car capable of immediate powered movement are under the control of an intoxicated motorist, which is precisely the evil the legislature sought to avoid through 14-227a (a). We conclude, therefore, that the statute does not require the state to prove that the defendant intended to move the vehicle in order to prove operation under 14-227a (a).

Id. at 93.

The court concluded:

An accused operates a motor vehicle within the meaning of General Statutes 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he 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.

Id. See also State v. Marquis, 24 Conn. App. 467 (1991).

In State of Connecticut v. Andrew C. Haight (see citation below) the facts are as follows: At or around 12:30 a.m. on October 20, 2001, Kevin Dowling, a New Canaan police officer, was driving along Elm Street when he observed the defendant’s Lexus RX300 parked in a parking space with its headlamps illuminated. He did not observe anyone in or around the motor vehicle and drove around the block. Dowling returned to the vehicle and observed the defendant inside of the vehicle, asleep. Dowling looked inside the vehicle and saw that the keys were in the ignition in the off position. The vehicle was not running. Dowling attempted to rouse the defendant, to no avail. Dowling then opened the driver’s door and a warning chime in the vehicle sounded, indicating that the keys were in the ignition and that the door was open. The defendant was placed under arrest and subsequently submitted to breath tests, which he failed.

In State of Connecticut v. Andrew C. Haight (AC 24335), which was argued

October 26, 2004 and officially released March 29, 2005, the court tells us that when a defendant files a motion to dismiss under Connecticut General Statute Sec. 54-56 for insufficient cause to justify the prosecution of the case, the court is required to “weigh all the competing factors and considerations of fundamental fairness to both sides: the defendant, the state and society, and presumably the victim…This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state’s case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant’s defense, the defendant’s personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness. State v. Dills, 19 Conn. App. 495, 503-504, 563 A.2d 733 (1989)” This means that where you have a DUI case in which probable cause has not be found by the issuance of a warrant you can file this motion to dismiss under Section 54-56 without a trial having first occurred.

In Haight the case of State v. Gordon, 84 Conn. App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004) is cited along with State v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990) with regard to the “sequence that will set in motion the motive power of the vehicle” and how “engaging the ignition affects movement” of the vehicle and how you must factually support this with evidence. The Court then cites DeCoster relative to the ignition key being in the “off” position and that there must be a “critical nexus between intoxication and operation. There must be evidence of how much time had transpired between the moment the defendant last operated his motor vehicle and the moment he was discovered sitting in the motor vehicle. State v. DeCoster, 147 Conn. 505 (1960).

In Haight the Court concludes as follows: “As in DeCoster, there is no evidence in the present case demonstrating when the defendant operated his motor vehicle in relation to his intoxication. The evidence does not demonstrate that the defendant was operating his motor vehicle when Dowling discovered him. Apart from evidence concerning the defendant’s physical condition and position in the vehicle, there is only evidence of a key in the motor vehicle’s ignition and the motor vehicle’s headlamps having been turned on. Taken individually or together, this evidence is not sufficient to demonstrate that the defendant had engaged the mechanical or electrical equipment of his motor vehicle so as to activate the motive power of the vehicle. In the present case, the evidence of operation as required by Connecticut General Statute Sec. 14-227a is lacking.” The judgment was reversed.

Recently, the Appellate Court heard the case of Indy Sengchanthong v. Commissioner of Motor Vehicles, 92 Conn. App. 365 argued September 23, 2005 and officially released November 22, 2005. With regard to the Sengchanthong case the relevant facts are as follows: On May 30, 2004, at approximately 3:20 a.m., Officer Mark J. Comeau of the East Lyme police department, while traveling southbound on Interstate 95 in his police cruiser, observed a motor vehicle parked on the shoulder of Interstate 95 northbound between exits 72 and 73. While investigating the motor vehicle, Comeau made the following observations. The vehicle’s left turn signal was flashing. Although rain was not falling, the windshield wipers were operating. Sengchanthong was reclined in the driver’s seat. Comeau flashed a spotlight at both the front and rear of the vehicle, but Sengchanthong did not respond. Comeau drove his police cruiser behind the vehicle. Sengchanthong at page 367.

As Comeau approached the vehicle, he could hear the heater blower motor running. Comeau also observed that “the [car] key…was in the ignition and was turned to the ‘on’ position. Comeau knocked on the driver’s window and did not get an immediate response. After knocking very hard on the driver’s window, Comeau roused Sengchanthong. While speaking with him, Comeau smelled a strong odor of alcohol inside the vehicle and on his breath. He also had glassy, bloodshot eyes. He was the sole occupant of the vehicle and appeared to be disoriented, as well as intoxicated. He also admitted to drinking earlier around 9:00 p.m. He was then asked to exit his vehicle and administered a standard battery of field sobriety tests. Due to his poor performance of the tests, Comeau placed him under arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor. Supra at pages 367-368.

Comeau transported Sengchanthong to police headquarters, apprised him of the mandatory alcohol testing requirements of the implied consent law and offered him an opportunity to contact an attorney. Sengchanthong agreed to take a Breathalyzer test. The first test was administered at 4:16 a.m., and the result showed a blood alcohol content of 0.168 percent. The second test was administered at 4:54 a.m., and the result showed a blood alcohol content of 0.144 percent. Supra at 368-369.

On July 7, 2004, a hearing was held before James Quinn, a DMV hearing officer who suspended Sengchanthong’s driver’s license. Supra at 369.

On July 13, 2004, Sengchanthong appealed the Quinn decision to the Superior Court. The Superior Court reinstated the license of Sengchanthong and the Attorney General of Connecticut appealed that decision to the Appellate Court. Supra at 370.

“The Substance of the State’s argument in the Appellate Court is that the Superior Court improperly held that the hearing officer’s finding that the plaintiff [Sengchanthong] had operated the motor vehicle is not supported by the record. In his brief and at oral argument, the AG contended that the fact that Sengchanthong was reclined backward in the driver’s seat of a motor vehicle, which was parked on the shoulder of Interstate 95 with the left turn signal flashing, windshield wipers operating, heater blower motor on and car key in the ‘on’ position of the ignition, established operation at the moment Comeau approached the vehicle. We disagree.” Supra at 372.

In coming to its decision in Sengchanthong the Court focused on “what constitutes operation within the meaning of C.G.S. Sec. 14-227b. Nothing in the statute clarifies the meaning of ‘operate.’ The use of the term is ambiguous and makes no clear distinction between ‘driving’ and ‘operating’ a motor vehicle.”

In Sengthanthong the Appellate Court focused on virtually all of the relevant case law interpreting operation, which are criminal cases.

Initially the Sengthanthong case reviewed the “Connecticut Supreme Court Case of State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939). The statute ‘refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this 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 the vehicle.” Supra at 373-374.

In Swift, a criminal case, the Connecticut Supreme Court gives its seminal interpretation of “operation” and this definition appears to have withstood the test of time as it is usually referred to in almost every case with regard to the issue of “operation” and forms the basis of the charge to the jury on the issue of “operation” in criminal matters wherein a person is charged under CGS 14-227a.

Then the Sengchanthong Court cites several more criminal cases with regard to operation from the Connecticut Appellate Court. The Court writes as follows: “In State v. Ducatt, 22 Conn. App. 88, 575 A.2d 708 cert. denied, 217 Conn. 804, 584 A2d 472 (1990), this court had the opportunity to further elucidate the definition of operation from Swift. This court explained: ‘An accused operates a motor vehicle within the meaning of [the statute] when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he 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.’ Id., 93. In State v. Wiggs, 60 Conn. App. 551, 760 A.2d 148 (2000), this court [Connecticut Appellate Court], again, explained that ‘[m]erely engaging the ignition or manipulating the gearshift or releasing the parking brake would satisfy the requisite intent’; id., 554; to set in motion the motive power of the vehicle.” Supra at 373.

In Sengchanthong, he was not doing any act, manipulating any machinery or making use of any mechanical or electrical agency that alone or in sequence would set in motion the motive power of the vehicle. Supra at 374.

In fact, in deciding the Sengchanthong case the Court of Appeals in reaching its decision with regard to operation refers to and cites the leading criminal case decision with regard to operation breaking these decisions down into two (2) categories: First, when an alleged operator is found in a position to control the movements of a motor vehicle and the vehicle’s engine is running; and Second, when the alleged operators were found in vehicles without the engine running wherein the courts have found operation only where the alleged operator was engaged in some action, manipulating, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects of could affect the vehicle’s movement, whether the accused moves the vehicle or not. Supra at 375-377.

In Haight, the officer located the defendant in the car. The car’s engine was not running and the keys were not in the on position in the ignition. The Court held that there was no way to establish operation. More specifically, the State could not demonstrate that operation occurred while the defendant was intoxicated. Furthermore, in Sengchanthong v. Comm’r of Motor Vehicles, 92 Conn. App. 365 (2005), the defendant was found in the vehicle a sleep with the keys in the ignition in the on position. The defendant’s vehicle was parked along side Interstate 95 with a right hand turn signal activated. Even on these facts, the court found that the State could not prove operation. In Mr. Deeb’s case, he was not found in the car, the car was not running, there were no keys in the ignition and there are no witnesses that can demonstrate that Mr. Deeb was operating the vehicle. In Haight and Sengchanthong, the defendants were found in the vehicles with the keys in the ignition.

The Attorney General of the State of Connecticut appealed the Haight decision to the Connecticut Supreme Court. The State Supremes on August22, 2006 released their 9 page decision, which states that based on their 1939 decision in State vs. Swift, “the insertion of a key into the ignition is an action, which, alone or in sequence, sets into motion the motive power of the vehicle. The defendant operated a motor vehicle, pursuant to C.G.S. Sec. 14-227a(a).” State vs. Haight, 12 Conn. Ops. 859 (August 21, 2006), Connecticut Supreme Court (SC 17435). The Court remanded with directions to affirm the trial court’s judgment.

There is another case that went to the Connecticut Supreme Court. This case was a case that I handled through the DMV Administrative Per Se Hearing up through the Connecticut Supreme Court. While the decision relies on State vs. Haight, I include the decision in its entirety so that you have the full view of operation of a motor vehicle in the State of Connecticut. I am disappointed to the extent that I lost this case; however, it was inevitable that the Court would follow its Haight decision in deciding Sengchanthong. If you are impaired while driving and pull off the road to avoid the avoidable you get no credit when the key is in the ignition. So, to this extent the “key in the ignition” is key (no pun intended) to decisions regarding operation. And remember that for purposes of defining operation in our statutes the Connecticut Supreme Court stated that “The word ‘operating’ as used in the implied consent statute has the same meaning that it does in the statute governing the offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs. C.G.S.A. §§ 14-227a, 14-227b.”


The decision in Sengchanthong is as follows:

281 conn. 604, 917 a.2d 94
Supreme court of Connecticut.
Indy Sengchanthong
v.
Commissioner of Motor Vehicles.No. 17606.
Argued Jan. 10, 2007.
Decided March 13, 2007.

Background: Commissioner of motor vehicles appealed from the decision of the Superior Court, Judicial District of New Britain, Levine, J., sustaining motorist’s appeal from order of the Department of Motor Vehicles, suspending motorist’s operator’s license for ninety days. The Appellate Court, 92 Conn.App. 365, 885 A.2d 218, affirmed.

Holding: Following grant of commissioner’s petition for certification, the Supreme Court held that vehicle occupant’s insertion of key into ignition while seated in the driver’s seat constituted “operation” of a motor vehicle within meaning of implied consent law.

Reversed and remanded.

**943 Gregory T. D’Auria, associate attorney general, with whom were Priscilla J. Green, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Nancy E. Arnold, assistant attorney general, for the appellant (defendant).

Steven A. Tomeo, for the appellee (plaintiff).

Borden, Norcott, Katz, Vertefeuille and Sullivan, Js.

Per Curiam.

[1] *605 The sole issue in this appeal is whether the plaintiff, Indy Sengchanthong, was operating a motor vehicle within the meaning of General Statutes § 14-227b. FN1 After a hearing, the defendant, the commissioner of motor vehicles (commissioner), suspended the plaintiff’s motor vehicle operator’s license for ninety days pursuant to that statute. The plaintiff appealed to the trial court, which sustained his appeal. Thereafter, the commissioner appealed from the judgment of the trial court to the Appellate Court. Sengchanthong v. Commissioner of Motor Vehicles, 92 Conn.App. 365, 885 A.2d 218 (2005). The Appellate Court affirmed the *606 judgment of trial court, and we granted the commissioner’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that there was insufficient evidence to support a finding of the plaintiff’s operation of a motor vehicle as required by … § 14-227b?” Sengchanthong v. Commissioner of Motor Vehicles, 277 Conn. 912, 894 A.2d 992 (2006). We conclude that the plaintiff was operating a motor vehicle within the meaning of § 14-227b and, accordingly, reverse the judgment of the Appellate Court.

FN1. General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine and, if such person is a minor, such person’s parent or parents or guardian shall also be deemed to have given their consent.

“(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test or if such person submits to such test and the results of such test indicate that such person has an elevated blood alcohol content, and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given….”

Section 14-227b(i) authorizes the commissioner of motor vehicles to suspend a person’s motor vehicle operator’s license for ninety days if the person has been found, after a hearing, to have had an elevated blood alcohol content while operating a motor vehicle.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “On May 30, 2004, at approximately 3:20 a.m., Officer Mark J. Comeau of the East Lyme police department, while traveling southbound on Interstate 95 in his police cruiser, observed a motor vehicle parked on the shoulder of Interstate 95 north-bound between exits 72 **944 and 73. While investigating the motor vehicle, Comeau made the following observations. The vehicle’s left turn signal was flashing. Although rain was not falling, the windshield wipers were operating. The plaintiff was reclined in the driver’s seat. Comeau flashed a spotlight at both the front and rear of the vehicle, but the plaintiff did not respond. Comeau drove his police cruiser behind the vehicle.

“As Comeau approached the plaintiff’s vehicle, he could hear the heater blower motor running. Comeau also observed that the [car] key … was in the ignition and was turned to the on position. Comeau knocked on the driver’s window and did not get an immediate response. After knocking very hard on the driver’s window, Comeau roused the plaintiff. While speaking with the plaintiff, Comeau smelled a strong odor of alcohol inside the vehicle and on the plaintiff’s breath. The plaintiff also had glassy, bloodshot eyes. The plaintiff was the sole occupant of the vehicle and appeared to *607 be disoriented, as well as intoxicated. When asked where he had been driving, the plaintiff stated that he started out driving in New Britain and was headed to Manchester via Interstate 84. He then argued that he was on Interstate 84 instead of Interstate 95. The plaintiff informed Comeau that he had consumed one beer prior to starting his trip home at 9 p.m. Comeau asked the plaintiff to exit his vehicle. Comeau then administered a standard battery of field sobriety tests. Due to the plaintiff’s poor performance of the tests, Comeau placed him under arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor.

“Comeau transported the plaintiff to police headquarters, apprised him of the mandatory alcohol testing requirements of the implied consent law and offered him an opportunity to contact an attorney. The plaintiff agreed to take a Breathalyzer test. The first test was administered at 4:16 a.m., and the result showed a blood alcohol content of 0.168 percent. The second test was administered at 4:54 a.m., and the result showed a blood alcohol content of 0.144 percent.

“A written report of the arrest and elevated blood alcohol content was forwarded to the department of motor vehicles pursuant to § 14-227b. The [commissioner] notified the plaintiff that his operator’s license would be suspended for a period of ninety days because he had operated a motor vehicle while under the influence of intoxicating liquor and that he was entitled to a hearing to contest the suspension. Pursuant to § 14-227b, the plaintiff requested and was subsequently granted an administrative hearing on the proposed license suspension.

“On July 7, 2004, a hearing was held before James Quinn, a department of motor vehicles hearing officer. Quinn found that (1) the police officer had probable *608 cause to arrest the plaintiff for a violation specified in § 14-227b, (2) the plaintiff was placed under arrest, (3) the plaintiff submitted to the Breathalyzer test, which indicated that his blood alcohol content was 0.08 percent or more, and (4) the plaintiff was operating the motor vehicle. In subordinate findings, the hearing officer found that [t]he [police] officer had probable cause to arrest the [plaintiff] after finding him asleep behind the wheel of his motor vehicle parked alongside [Interstate] 95 with the [car] key [in] the ignition and the [windshield] wiper and heater running. The [plaintiff] had been drinking earlier and was very lost. On the basis of the findings, the [commissioner] suspended the plaintiff’s operator’s license for ninety days.

“On July 13, 2004, the plaintiff appealed from his license suspension to the Superior **945 Court, claiming that the decision of the hearing officer was contrary to law and fact on the following grounds: (1) there was no probable cause for arrest, (2) he was not operating the motor vehicle and (3) the breath test was not administered within two hours of the time of operation. On November 9, 2004, the court sustained the appeal, finding that there was not substantial evidence of operation, there was no probable cause and that it was unclear whether the tests were administered in a timely fashion.” (Internal quotation marks omitted.) Sengchanthong v. Commissioner of Motor Vehicles, supra, 92 Conn.App. at 367-70, 885 A.2d 218. The commissioner appealed to the Appellate Court claiming that the trial court improperly concluded that (1) the hearing officer’s finding that the plaintiff operated a motor vehicle was not supported by the record and (2) that it was not clear whether the blood alcohol content test given to the plaintiff was timely taken. Id., at 367, 885 A.2d 218. The Appellate Court disagreed *609 with the commissioner’s first claim, did not reach his second claim and affirmed the judgment of the trial court. FN2 Id., at 367, 372, 378, 885 A.2d 218. This certified appeal followed.

FN2. In the present appeal, the plaintiff continues to claim the trial court properly found that the commissioner had not established that the plaintiff had been operating the vehicle within two hours before the blood alcohol test was administered to him at 4:16 a.m. on May 30, 2004, as required by § 14-277b (g). This claim is predicated on his claim that he was not operating the vehicle when he was discovered by the police at approximately 3:20 a.m. Because we conclude that he was operating the vehicle when he was discovered, we need not reach this claim.

[2] [3] [4] At the outset, we set forth our standard of review. “[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [ (UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted…. [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable…. Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact…. Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561(2000).

[5] [6] [7] “Although the interpretation of statutes is ultimately a question of law … it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement…. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of *610 the law to the facts found and could reasonably and logically follow from such facts…. We also have held that an exception is made when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny … the agency is not entitled to special deference…. Accord Bridgeport Hospital v. Commission on Human Rights & Opportunities, [232 Conn. 91, 109, 653 A.2d 782 (1995)] ( [a]s we have stated many times, the factual and discretionary determinations of administrative agencies are to be given considerable weight by **946 the courts … [however] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law …).” (Internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 771-72, 817 A.2d 644 (2003).

In the present case, the question of whether the plaintiff was operating a motor vehicle within the meaning of § 14-227b is a matter of statutory interpretation. State v. Haight, 279 Conn. 546, 550-51, 903 A.2d 217 (2006) (whether defendant was operating motor vehicle within meaning of General Statutes § 14-227a was question of statutory interpretation). Because the application of the statute to the particular facts of this case previously had not been subject to judicial scrutiny when the commissioner suspended the plaintiff’s motor vehicle operator’s license, our review is plenary.

After this appeal was filed, but before oral argument, this court issued its decision in State v. Haight, supra, 279 Conn. at 546, 903 A.2d 217. The issue in that case was whether the defendant, who had been discovered by a police officer asleep in the driver’s seat of a Lexus RX 300 with the key in the ignition, was operating the vehicle within the meaning of § 14-227a. Id., at 549, 903 A.2d 217. We concluded that he was. We stated that “[m]ere insertion of the key into the ignition is an act … which alone or in sequence will set in motion the motive power of the vehicle … *611 and, therefore, itself constitutes operation of the vehicle.” (Internal quotation marks omitted.) Id., at 555-56, 903 A.2d 217. The fact that the defendant had been asleep in the vehicle when he was discovered did not affect our conclusion. Id., at 553-55, 903 A.2d 217.

[8] It is undisputed that the word “operating” as used in § 14-227b has the same meaning that it does in § 14-227a. See Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 681, 849 A.2d 813 (2004) (“the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter” [internal quotation marks omitted] ). The facts of the present case are indistinguishable from the facts in Haight. FN3 Accordingly, we conclude that Haight governs this case and that the Appellate Court improperly determined that there was not substantial evidence to support the finding that the plaintiff was operating a motor vehicle within the meaning of § 14-227b.

FN3. The plaintiff argues that the present case is distinguishable from Haight because, unlike the defendant in that case, he had been operating the vehicle and then had ceased doing so by pulling off the highway, turning the key to disengage the motor, reclining his seat and removing his hands and feet from any part of the vehicle that could engage its motive power. We are not persuaded. The dispositive facts in Haight were that the defendant was in the driver’s seat of the vehicle and had inserted a key in the ignition. Because that state of facts existed in the present case, the plaintiff was operating the vehicle and the preceding circumstances are irrelevant.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court with direction to dismiss the plaintiff’s appeal.


So, Just when you think that operation has been decided and that you need the key in the ignition to have operation when you are stopped another case comes along where there was no key in the ignition but the engine was running after it was started by a remote starter. The interesting feature here is that even though the engine was running the key has to be in the ignition and turned to the on position before you can engage the motive power to propel you forward or backwards. The case that speaks to this issue is Stat of Connecticut v. Michael Cyr (SC 17975). I argued this case on December 3, 208 and the Supreme Court of Connecticut officially released its decision on March 31, 2009.

“The Supreme Court, Rogers, C.J., held that starting a car with a remote starter, then sitting behind the wheel of that car with the motor running without inserting ignition key constituted operation of a motor vehicle under statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs.”

I included the Supreme Court’s decision in its entirety. This is a case in which many attorneys disagree with the decision and especially with the cited analogies that form a major part of the reasoning as to the issue of operation. The case is as follows:

291 Conn. 49, 967 A.2d 32

Supreme Court of Connecticut.
STATE of Connecticut
v.
Michael CYR.
No. 17975.
Argued Dec. 3, 2008.
Decided March 31, 2009.

Background: Defendant was convicted on his conditional plea of nolo contendere in the Superior Court, Judicial District of Hartford, Cofield, J., of operating a motor vehicle while under the influence of intoxicating liquor or drugs. Defendant appealed. The Appellate Court, 101 Conn.App. 701, 923 A.2d 772, reversed. State petitioned for certification to appeal.

Holding: The Supreme Court, Rogers, C.J., held that starting a car with a remote starter, then sitting behind the wheel of that car with the motor running without inserting ignition key constituted operation of a motor vehicle under statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs.

Judgment of Appellate Court reversed and remanded with directions.

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        • 110XXIV(L) Scope of Review in General
        • 110XXIV(L)4 Scope of Inquiry
        • 110k1134.28 k. Statutory Issues in General.
        • Most Cited Cases: To the extent that the resolution of issue raised on appeal required appellate court to construe the meaning of terms used in statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs, appellate court’s review was plenary. C.G.S.A. § 14-227a(a).
      8. KeyCite Citing References for this Headnote
        • 48A Automobiles
        • 48AVII Offenses
        • 48AVII(A) In General
        • 48Ak332 k. Driving While Intoxicated.
        • Most Cited Cases: The term “operating” in statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs encompasses a broader range of conduct than does the term “driving.” C.G.S.A. § 14-227a(a).
      9. KeyCite Citing References for this Headnote
        • 48A Automobiles
        • 48AVII Offenses
        • 48AVII(A) In General
        • Most Cited Cases: The initial act constituting operation, within meaning of statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs, need not have taken place after the defendant entered his vehicle. C.G.S.A. § 14-227a(a).
      10. KeyCite Citing References for this Headnote
        • 48A Automobiles
        • 48AVII Offenses
        • 48AVII(A) In General
        • 48Ak332 k. Driving While Intoxicated.
        • Most Cited Cases: Because movement of a permanently disabled vehicle is impossible, an intoxicated person at its controls poses no danger to himself or to others and, therefore, falls outside the proscriptions of statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs. C.G.S.A. § 14-227a(a).
      11. KeyCite Citing References for this Headnote
        • 48A Automobiles
        • 48AVII Offenses
        • 48AVII(A) In General
        • 48Ak332 k. Driving While Intoxicated.
        • Most Cited Cases: The existence of a temporary obstacle or impediment will not preclude a finding of “operation” under statute defining offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs. C.G.S.A. § 14-227a(a).

**34 Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Lisa Herskowitz, assistant state’s attorney, for the appellee (state).

Steven A. Tomeo, with whom was Lawrence W. Bates, Jr., for the appellee (defendant).

Rogers, C.j., and Norcott, Katz, Palmer and H Vertefeuille, Js.
Rogers, C.j.

*50 This matter is the latest in a line of cases raising the question of what acts constitute operation of a motor vehicle for purposes of Connecticut’s statutory prohibition against operating a motor vehicle while intoxicated. The defendant, Michael Cyr, appealed from the judgment of conviction, following his conditional plea of nolo contendere FN1 to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General *51 Statutes (Rev. to 2005) § 14-227a(a), FN2 and the Appellate Court reversed that judgment after concluding that there was insufficient evidence that the defendant was operating his vehicle at the time of his arrest. State v. Cyr, 101 Conn.App. 701, 706-709, 923 A.2d 772 (2007). The state now appeals from the Appellate Court’s judgment upon our grant of certification. FN3 We conclude that the evidence in the record afforded probable cause to support the charge of operating a motor vehicle**35 while under the influence of intoxicating liquor or drugs and, therefore, that the trial court properly declined to dismiss that charge. Accordingly, we reverse the judgment of the Appellate Court.

FN1. The defendant’s plea was conditioned on the right to appeal from the denial of two previously filed motions to dismiss in which he challenged the adequacy of the evidence supporting the state’s allegations. See General Statutes §§ 54-56 and 54-94a.

FN2. General Statutes (Rev. to 2005) § 14-227a(a) provides in relevant part: “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 such person operates a motor vehicle … in any parking area for ten or more cars … (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight.”

FN3. We granted the state’s petition for certification to appeal limited to the following question: “Did the Appellate Court properly conclude that at the time of his arrest the defendant was not operating a motor vehicle?” State v. Cyr, 284 Conn. 919, 933 A.2d 722 (2007).

The following undisputed facts and procedural history are relevant to the appeal. On February 28, 2005, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a(a). The charge arose from an incident that occurred in the early morning hours of February 28, in which the defendant and a friend were sitting in the defendant’s car with the engine running, in a parking lot near the bar where the defendant worked. A patrolling police officer noticed the car, approached its driver’s side window and spoke with the defendant, at which point the officer detected the *52 odor of alcohol. The defendant was placed under arrest after he failed various sobriety tests.

The defendant pleaded not guilty to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs. On June 23, 2005, the defendant filed a motion to dismiss that charge, claiming that he had not been operating his motor vehicle on February 28, 2005. Attached to an accompanying memorandum of law was the transcript of a hearing that had been held before a department of motor vehicles hearing officer to determine whether the charges against the defendant warranted a suspension of his driver’s license. That transcript reflected the sworn testimony of the defendant, two police officers who were present for the defendant’s arrest and an expert witness who explained that a car that has been started with a remote starter cannot be driven until its ignition key is inserted and turned. After a hearing held on October 7, 2005, the trial court, Cofield, J., denied the defendant’s motion to dismiss the information. The court reasoned that from the evidence presented, viewed in the state’s favor, it was possible that the defendant had started his motor vehicle with the ignition key and that fact, under existing jurisprudence, would constitute operation for purposes of § 14-227a(a).

Thereafter, the defendant was charged in part B of the information with previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs, stemming from incidents that occurred in 1997 and 1998. On October 24, 2005, the defendant filed a second motion to dismiss the first part of the information. This motion was accompanied by a joint stipulation as to facts that, the defendant claimed, established that he had not “operate[d]” his motor vehicle within the meaning of § 14-227a(a). The stipulation provided in relevant part as follows: “1. The [d]efendant … started his [motor vehicle] … on *53 February 28, 2005 at approximately 2:20 [a.m.] in a private parking lot at 319 Main Street, Manchester, Connecticut with his remote starter from outside the vehicle. 2. [The defendant] opened the driver’s side door and sat in the driver’s seat while the motor was running. 3. At no time while in the vehicle did [the defendant] put the keys in the ignition or make use of any mechanical or electrical agency … [and] 4. [The defendant] was arrested for [operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a(a)].” In short, the stipulation eliminated any factual dispute over how the defendant had started the vehicle or whether his ignition key had been inserted FN4 and narrowed the question **36 presented to whether starting a car with a remote starter, then sitting behind the wheel of that car with the motor running, constituted operation of a motor vehicle pursuant to § 14-227a(a). On October 24, 2005, the trial court denied the defendant’s second motion to dismiss. Thereafter, the defendant entered a plea of nolo contendere, and the court rendered a judgment of conviction. FN5 The defendant’s appeal to the Appellate Court followed. FN6

FN4. At the October 7, 2005 hearing, the state had expressed an unwillingness to concede as to these disputed facts.

FN5. At that time, the defendant also pleaded guilty to part B of the information. He was sentenced to three years incarceration, execution suspended after one year, with three years probation, and was fined $2000.

FN6. It is not clear from either the appeal form or the form evidencing the defendant’s plea of nolo contendere whether the defendant sought to appeal the denial of his first motion to dismiss or his second motion to dismiss, or both. The appeal form identifies the “action which constitutes the final judgment [from which the appeal is taken]” as the defendant’s “[n]o contest plea with reservation to appeal the conviction of driving under the influence in violation of § 14-227a.” The plea of nolo contendere form, in the portion where the defendant is instructed to identify which motions he is reserving for review, was left blank. It is clear from the Appellate Court’s opinion, however, that it ruled solely on the propriety of the trial court’s denial of the defendant’s second motion to dismiss. State v. Cyr, supra, 101 Conn.App. at 703, 706-709, 923 A.2d 772. Neither party has taken issue with this approach.

*54 The Appellate Court, relying solely on the joint stipulation of facts, FN7 agreed with the defendant that those facts did not establish probable cause that he was operating a motor vehicle within the meaning of § 14-227a(a) and, accordingly, reversed the judgment of conviction. State v. Cyr, supra, 101 Conn.App. at 706-709, 923 A.2d 772. Citing to decisions of this court establishing a definition of operation, the Appellate Court concluded that the stipulated facts did not meet that definition, in particular because the defendant, having used a remote starter, was outside the vehicle when he started its engine. Id., at 708, 923 A.2d 772. The Appellate Court further reasoned that the state had not alleged, or produced any evidence to indicate, that the defendant had the ignition key in his possession FN8 or that the vehicle was capable of motion without the key. Id. Consequently, the Appellate Court determined that the state had not shown that the defendant had undertaken an act that “alone or in sequence [with other acts would] set in motion the motive power of the vehicle.” Id. The state then appealed to this court.

FN7. The defendant did not provide the Appellate Court with either a memorandum of decision or a signed transcript indicating the reasons for the trial court’s denial of the defendant’s second motion to dismiss. State v. Cyr, supra, 101 Conn.App. at 706 n. 3, 923 A.2d 772. Although signed transcripts of the hearings on both motions to dismiss ultimately were made part of the record after the Appellate Court ordered the trial court to review and sign the relevant portions of the transcripts of the trial court’s oral decisions, the Appellate Court apparently did not consider the representations of counsel contained therein, or the evidence attached to the defendant’s first motion to dismiss, in disposing of the appeal.

FN8. According to the Appellate Court, the statement in the stipulation that the defendant did not put the keys in the ignition is “ambiguous and can equally be read as implying that the keys were not in the vehicle at all.” State v. Cyr, supra, 101 Conn.App. at 708 n. 4, 923 A.2d 772.

[1] The state argues that the Appellate Court improperly concluded that the allegations and evidence were insufficient to show that the defendant was operating a motor vehicle. The state claims that the definition of operation established by this court’s precedent is broad *55 enough to encompass the acts undertaken by the defendant,**37 and further, that the Appellate Court failed to consider the entire record considered by the trial court when it denied the second motion to dismiss. According to the state, Connecticut’s broad definition of operation and strong public policy aimed at minimizing the hazards associated with operating under the influence compel a conclusion that the defendant, by sitting in his vehicle after he started the engine with a remote starter, was operating that vehicle within the meaning of § 14-227a(a). The defendant argues in response that he was not operating his motor vehicle as contemplated by the statute because he had started its engine while he was outside of the vehicle and because his key was not in the ignition, a necessary precursor to setting in motion a vehicle that has been started with a remote starter. According to the defendant, “the fact that the engine is running does not also mean that the vehicle is capable of motive power. Where more steps are necessary to engage the motive power of a vehicle that has been started through remote control than to engage the motive power of a vehicle not remotely started, remote starting of a vehicle does not mean that one is ‘operating’ the vehicle [for purposes of § 14-227a].” We agree with the state.

[2] [3] [4] The trial court rejected the defendant’s contention that dismissal of the charges pursuant to General Statutes § 54-56 was warranted. Under the authority of § 54-56, trial courts overseeing criminal prosecutions “may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence … to justify the bringing or continuing of such information or the placing of the person accused therein on trial.” When assessing whether the state has sufficient evidence to show probable cause to support continuing prosecution, the court must view the proffered proof, *56, and draw reasonable inferences from that proof, in the light most favorable to the state. State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). “The quantum of evidence necessary to establish probable cause … is less than the quantum necessary to establish proof beyond a reasonable doubt at trial…. In [ruling on the defendant’s motions to dismiss], the court [must] determine whether the [state’s] evidence would warrant a person of reasonable caution to believe that the [defendant had] committed the crime.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990).

[5] [6] [7] “A motion to dismiss … properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court….” (Internal quotation marks omitted.) State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). Accordingly, “[o]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] … the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Id. Moreover, to the extent that the resolution of this issue requires us to construe the meaning of terms used in § 14-227a(a), our review, similarly, is plenary. Id.

Pursuant to § 14-227a(a), “[a] person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle … (1) while under the influence of intoxicating liquor or any drug or both….” (Emphasis added.) Because the statute and its predecessors did not define the term “operate,” and the legislative history of the **38 statute is unilluminating, that task was left to the courts. See State v. Haight, supra, 279 Conn. at 551, 903 A.2d 217. The resulting definition that long has been in use has its origins in State v. Swift, 125 Conn. 399, 403, 6 A.2d 359 (1939), an appeal in which this court approved the following jury instruction *57 explaining what it meant to operate a vehicle: “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 the vehicle.” (Internal quotation marks omitted.)

[8] Adoption of that definition established, and subsequent cases confirmed, that the term ” ‘operating’ encompasses a broader range of conduct than does [the term] ‘driving.’ ” State v. Haight, supra, 279 Conn. at 551, 903 A.2d 217. After a number of decisions made clear that sitting at the wheel of a nonmoving vehicle with the engine running constituted operation; see, e.g., State v. Wiggs, 60 Conn.App. 551, 554-55, 760 A.2d 148 (2000); State v. Marquis, 24 Conn.App. 467, 468-69, 589 A.2d 376 (1991); State v. Ducatt, 22 Conn.App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990); the question arose whether the definition could be satisfied when a defendant had been seated in a vehicle that neither was in motion nor had its motor running. See State v. Haight, supra, at 552, 903 A.2d 217. In Haight, this court concluded that it could. Id. Specifically, we held that the evidence was sufficient to sustain a prosecution under § 14-227a(a) when the defendant was found sleeping in the driver’s seat of his legally parked vehicle, with the key in the ignition FN9 and the headlights illuminated, but without the motor running. Id., at 547, 903 A.2d 217. We explained: “The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, *58 will set in motion the motive power of the vehicle…. Each act therefore constitutes operation of the vehicle under the definition set forth in Swift.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 553, 903 A.2d 217.

FN9. In Haight, the evidence indicated that the key was in either the “off” or the “accessory” position and that turning it to the “start” position, and then to the “on” position, respectively, would be necessary to engage and continue running the vehicle’s motor. State v. Haight, supra, 279 Conn. at 548, 903 A.2d 217. We concluded that the factual question regarding the key’s position was nondispositive, however, after concluding that mere insertion of the key constituted operation. Id., at 555-56, 903 A.2d 217.

[9] We conclude that the facts of this case warrant a similar conclusion. In starting the engine of his vehicle remotely then getting behind the steering wheel, the defendant clearly undertook the first act in a sequence of steps necessary to set in motion the motive power of a vehicle that has been equipped with a remote starter. FN10 **39 The fact that the defendant next needed to insert his key to continue the process of setting in motion that motive power is of no greater import in determining whether there has been “operation” than the fact that a person without a remote starter, after inserting the ignition key, will need to turn that key to start the motor. FN11 See footnote 9 of this opinion. In either *59 circumstance, the defendant has taken the first step toward engaging the motive power of the vehicle but, due to the different technologies employed, the order of the steps varies. We see no logical or policy reason why reversing the sequence of the steps involved in starting a motor vehicle should defeat a finding of operation, as long as the defendant has taken the first step in whichever sequence applies. FN12

FN10. We reject the claim that, pursuant to our case law, the initial act constituting operation must have taken place after the defendant entered his vehicle. Although the jury instruction approved in State v. Swift, supra, 125 Conn. at 403, 6 A.2d 359, and carried forward in the jurisprudence that followed, included the phrase “when in the vehicle” preceding the proscribed conduct, we consider that phrase to be in the nature of dicta because the defendant’s location was not at issue in Swift or in any subsequent case applying the language of the instruction. The court in Swift likely included the language to tailor the instruction to the facts of that case. Specifically, the defendant in Swift was discovered by police behind the wheel of a car that was stuck in an embankment. Id., at 401, 6 A.2d 359. He was trying to “drive the car out of its position and to start the engine while [a companion] was trying to push it.” Id., at 402, 6 A.2d 359. In light of those facts and circumstances, it is probable that the trial court, by including the language “when in the vehicle,” simply intended to distinguish the defendant’s acts from those of his companion. Additionally, because Swift long predated the advent of remote starters, the court could not have been contemplating their use or intending to exclude them from the definition of what it meant to operate a vehicle, when it approved the language at issue.

FN11. We disagree with the Appellate Court’s assessment of the joint stipulation of facts as possibly raising an inference that the defendant was not in possession of the ignition key and its conclusion, on the basis of that assessment, that the state had failed to show probable cause sufficient to continue prosecution. State v. Cyr, supra, 101 Conn.App. at 708, 923 A.2d 772. First, the record amply demonstrates that it was undisputed throughout the proceedings in the trial court that the defendant possessed the ignition key as he sat in his vehicle with the motor running. Specifically, the transcript of the department of motor vehicles hearing attached to the defendant’s first motion to dismiss included the defendant’s sworn testimony that, after entering the vehicle, he placed his keys on the center console. Furthermore, both testifying officers confirmed that, after the defendant’s arrest, they saw the keys on that console. Consistent with this testimony, defense counsel, at the hearing on the first motion to dismiss, repeatedly represented to the court that the keys remained on the center console. There is no indication that the defendant, in entering the stipulation, somehow sought to rescind the evidence and factual representations that he had set forth in support of his earlier motion. In light of the evidence in the record and the representations of counsel, the stipulation cannot reasonably be read to suggest that the defendant was not in possession of his keys.

Second, as previously explained, a trial court passing on a motion to dismiss for insufficient evidence is obligated to make all reasonable inferences from the offered proof in favor of the state. State v. Kinchen, supra, 243 Conn. at 702, 707 A.2d 1255; State v. Morrill, supra, 193 Conn. at 611, 478 A.2d 994. Even in the absence of the recited evidence and representations, therefore, it would have been improper for the trial court, faced with competing inferences arising from the stipulation, to have adopted the one most favorable to the defendant in ruling on his motion.

FN12. For similar reasons, we reject the defendant’s argument that, because more steps are necessary to engage the motive power of a vehicle that has been started by remote control than to engage the motive power of a vehicle not remotely started, one who remotely starts a vehicle is not operating the vehicle. By the defendant’s logic, a person seated at the wheel of a vehicle with a standard transmission with the key in the ignition would not be operating that vehicle because he could not start the vehicle without first depressing the clutch, while a person in a vehicle with an automatic transmission under identical circumstances would be operating his vehicle because that intermediate step is unnecessary. The law cannot countenance such irrational and arbitrary line drawing. [Emphasis is mine.]

[10] We find additional support for our conclusion in cases that have distinguished between situations in which *60 a defendant is attempting to control a vehicle that is permanently disabled and, therefore, incapable of operation, and situations in which a temporary obstacle or impediment **40 to movement exists that the defendant, having an otherwise functional vehicle, readily may overcome. In regard to the former category, this court has observed: “A person could not be said to be operating a car with no engine in it if he entered it and manipulated the controls…. A car which is totally disabled cannot be said to have been operated.” State v. Swift, supra, 125 Conn. at 404, 6 A.2d 359. Stated otherwise, manipulating the controls of an inoperable vehicle contributes nothing toward setting in motion its motive power, because such a vehicle is wholly incapable of movement. Because movement of a permanently disabled vehicle is impossible, an intoxicated person at its controls poses no danger to himself or to others and, therefore, falls outside the proscriptions of § 14-227a(a).

[11] When an obstacle or impediment is temporary, however, it remains possible that it can be surmounted, and that movement of the vehicle will ensue. Thus, the threat targeted by statutes disallowing not just driving, but also operating a motor vehicle while intoxicated-that is, “the danger that a parked vehicle will be put in motion by an intoxicated occupant and thereby pose a risk to the safety of the occupant and others”-remains present when the condition rendering the vehicle inoperable is a temporary one that quickly can be remedied. State v. Adams, 142 Idaho 305, 308, 127 P.3d 208 (Ct.App.2005), review denied, 2005 Idaho Lexis 206 (June 8, 2005). Consequently, the existence of a temporary obstacle or impediment will not preclude a finding of operation. Id. (“[w]hen there is evidence from which a fact-finder could sensibly conclude that the vehicle was reasonably capable of being rendered operable, the issue [of operation] is [one] for the jury”).

*61 Consistent with the foregoing distinction, intoxicated defendants attempting to extricate vehicles that are stuck in ditches, snow or loose dirt, or hung up on some physical object, regularly are found to have been operating those vehicles, even though they temporarily were incapable of movement. See, e.g., State v. Boynton, 556 So.2d 428, 429-30 (Fla.App.1989); State v. Saul, 434 N.W.2d 572, 577 (N.D.1989); Jenkins v. State, 501 P.2d 905, 906 (Okla.Crim.App.1972); Commonwealth v. Kallus, 212 Pa.Super. 504, 506-508, 243 A.2d 483 (1968); Gallagher v. Commonwealth, 205 Va. 666, 670, 139 S.E.2d 37 (1964); see also Waite v. State, 169 Neb. 113, 117-18, 98 N.W.2d 688 (1959). We believe the present matter is analogous. Like a slippery surface or trapped wheels, the lack of an inserted ignition key is but a temporary impediment to the movement of a remotely started vehicle. Because such an impediment easily is overcome by insertion of the key, it will not preclude a finding of operation.

Our decision today finds support in the policy reasons underlying broad statutory prohibitions like the bar against operating a motor vehicle while intoxicated created by § 14-227a(a). Such provisions are ” preventive measure[s] … which deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers … and which enable the drunken driver to be apprehended before he strikes….” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smelter, 36 Wash.App. 439, 444, 674 P.2d 690 (1984); see also State v. Love, 182 Ariz. 324, 327, 897 P.2d 626 (1995) (recognizing “obvious statutory aim of enabling the drunken driver to be apprehended before he maims or kills himself or someone else” [emphasis added; internal quotation marks omitted] ); State v. Adams, supra, 142 Idaho at 307-308, 127 P.3d 208 (“statute is a prophylactic measure that is intended to discourage**41 intoxicated persons from entering motor *62 vehicles except as passengers” [emphasis added] ). By deterring intoxicated individuals from taking even the most preliminary steps toward driving their vehicles, our holding today furthers “Connecticut’s unambiguous policy … [of] ensuring that our highways are safe from the carnage associated with drunken drivers.” (Internal quotation marks omitted.) State v. Haight, supra, 279 Conn. at 555, 903 A.2d 217.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

Conn.,2009.
State v. Cyr
291 Conn. 49, 967 A.2d 32

I disagree with this decision but understand that the Connecticut Supreme Court is saying that the OUI Laws are preventative in nature so do not get into the vehicle after drinking alcohol or using drugs or medications. Under a similar set of facts would our Supreme Court find operation if you sit in the backseat by saying that “the lack of the insertion of the key into the ignition even while not sitting in the driver’ seat is an act … which alone or in sequence will set in motion the motive power of the vehicle …and, therefore, itself constitutes operation of the vehicle.” What do you think?

STEVEN TOMEO, ESQ.

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