No. 86-303 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

CITY OF RILLINGS, Plaintiff and Respondent,

-vsRAYMONE K. PEETE, Defendant and Appellant.

APPEAL FROM: District Court of the ThirteenthJudicial District, Inand for the County of Yellowstone, The Honorable G. Todd Baugh,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Sandall,Cavan, Smith,Howard & Grubbs; ,JohnJ. Cavan,Billings,Montana

For Respondent: Bonnie Sutherland.,City Attorney's Office, Billings,Montana

Submitted: September 18,1986 Decided: November 24, 1986

Filed: p :, ,

## ,1986Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court.

Raymond K. Peete, defendant, was convicted in Billings City Court of violating S 61-8-401(1)(a)

## ,MCA, driving while under the influence of alcohol. He appealed his conviction to Yellowstone County District Court. Defendant filed a motion todismiss, alleging thathewas notoperating amotor vehicle "upon the ways of the state open to the public," as required by the statute. The motion to dismisswas denied. Defendantwas again convicted of violating § 61-8-401(1)(a), MCA. Defendant appeals the DistrictCourt's failure to grant his motion todismiss. We affirm. Defendant's motion to dismiss was accompanied by a stipulation of facts. The following facts are taken from that stipulation: Defendant was arrested at approximately 10:30 p.m., August 2, 1984, in the Northern Hotel parking garage for driving while under the influence of alcohol. The parking garage is a privately owned and operated facility. It consistsof five levels ofparking spaces. The spaces on the ground level and the below-ground level are rented on a monthly basis. The top three levels are available to the general public for an hourly fee. After 5:00 p.m., the generalpublic may also use unoccupied spaces on the two lower levels. Use of the garage is controlled by employees of the

owner of the garage. Theparking attendant occupiesa ticket booth located between the entry and exit lanes of the facility. Patrons entering the garage receive a ticket from the attendant who is stationed at the ticket booth. Upon exiting the parking facility, the patron must stop at the ticket booth, show the attendant his ticket and pay the appropriate fee. All patrons use the same entry and exit. However,monthly rentersneed not stop at thebooth. 2Defendant rents a parking space on the below-ground level. On the night he was arrested, defendant was exiting the lowest level via an up-ramp when his vehicle collided with a motorcycle parked in an area near the ramp reserved forbicycles and motorcycles. Defendant advised theparking attendant of the accident and was subsequently arrested. The soleissueraised on appeal is: Did defendant, Raymond Peete, operate a motor vehicle "upon the ways of the state open to the public", within the meaning of 5 61-8-401, MCA, when he operated his vehicle within a privately owned and operated parking garage in Billings, Montana? The statuteunder which defendant was charged, 5 61-8-401, MCA, states: Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable asprovided in 61-8-714 for any person who isunder the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open tothepublic. "Ways of this state open to the public" is defined at 5 61-8-101 (1) 

## , MCA, as "any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.

### " Defendant contends that the Northern Hotel's parking garage is neither "adapted and fitted forpublic travel" nor "in common use by the public" because there isonly one way to access the facility, access is achieved only upon obtaining a ticket from theparking attendant and use of the facility requires payment of a monthly or hourly fee. The City of Billings contends that the statute refers to -. any parking area, including private parking garages; or, in the alternative, that the garage is "adapted and fitted for public travel that is in common use by the public" because the general public is permitted to use the facility for a small fee.Section 61-8-401(1), MCA, was enacted in its present form by the 1983 Montana legislature. Because the language defining "theways of this state open to the public" is less than clear, especially the term "in common use by the public",we turn to the legislative history to determine what the legislaturehad inmind. Our statute ispatterned after a City of Seattle traffic ordinance, Seattle Traffic Code SS 11.12.1020 and 11.14.715.



# .

# .. any road, alley, lane, parking area or any place,private or otherwise,adapted to and fitted for travel, that is in common use by the public with the consent, express or implied, of the owner or owners thereof. The initial legislation before our 1983 legislature included the words "with the express or implied consent of the owner" at the end. The phrase was deleted, however, to eliminate the burden of proving consent when the arrest was made in aprivate parking lot. [Betty Wing, Deputy County Attorney for Missoula County] also advised that when they go to court they have to prove everything that is in this language and the language on the end says "withthe express or implied consent of the owner"; shedid not think that this adds anything, and it is just one more thing they are going to have to prove. She indicated that theywould have to bring in the manager ofK-Mart to show that they dohave express or implied consent and this would just be another hassle for them.

CHAIRMAN BROWN said that he has problems understanding the language "with the express or implied consent of the owner" as this could get in theway in connection with parking lots, the lot in frontof thebar, or the lot at the shopping center and he wondered if

# . .. any of this would be a major problem with this language left as it is. MS. WING replied that it is hard to look at the future,but it appears tobe one more conflict that can come up in a trial and she felt that clearly, in anyparking lot ordriveway, [one]doeshave the expressor implied consentof the ownerbut it gets technical in legal terms to prove what implied consent is. House Judiciary Committee Minutes,March 11, 1983,pp. 4, 6. Furthermore, when ChairmanBrown questioned whether "the language 'in common use by the public' would imply that thebar parking lot, etc. would not be affected",Representative Keyser claimed that the whole phrase "fitted for public travel that is in common use by the public", would cover private parking lots. House Judiciary Committee Minutes, March 22, 1983,p. 16. Granted, a legislator's thoughts on what a statutemeans are not binding on thisCourt. However, from the discussion had in both the House and Senate Judiciary Committees with respect to this statute, it is clear that the statutewas intended to include the operation of a motor vehicle within a private parking lot, as long as that lot is fitted for public travel and in common useby the public. The Northern Hotel's parking garage fits the definition. This decision is consistent with Washington court opinions interpreting the City of Seattle's traffic ordinance. InCity of Seattlev. Wright (Wash. 1967), 433 P.2d 906, defendant was arrested for driving, while intoxicated, upon

an improved, 25 foot wide, hard-surface road owned by the Union Pacific Railroad. One of the four entries onto the two-block road was posted "Private Thoroughfare

## - 10M.P.H." However, local residentsparked along the sides and used the road to access their homes. Commercial vehicles also regularly used the road. TheWashington Supreme Court found the road to be a "road 

# . . . adapted to and fitted for travel,that is in commonuseby thepublicwith the consent, express or implied, of the owner. 

# .."because its surface

was similar to nearby public thoroughfares and because the only restriction on travel imposed by the owner was a ten mile per hour speed limit. Likewise, here, the parking garage is paved. Driving

areas are clearly indicated and the only restriction on travel imposed by the owner is that of the payment of a fee.City of Seattle v. Tolliver (Wash.App. 1982)

## , 641 P.2d 719, concerned an individual charged with operating a vehicle,while intoxicated, upon a privateparking lot located at a major intersection. The parking lot was held by the court to be an area covered by the traffic ordinancebecause of its easy access to adjoining streets and its history of

use by thepublic frequenting two taverns. Similarly, the Northern Hotel's parking garage not only has a history of use by thepublic, the public is encouraged to use the facility. The facility is obviously fitted for public travel and in common use by the public. It 

### is thus covered by §fj 61-8-101(1)and 61-8-401(1)(a),MCA. Defendant's conviction isa£

We concur: 

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