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 Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sandall, Cavan, Smith, Howard & Grubbs; ,John J. 

Cavan, Billings, Montana 

For Respondent: 

Bonnie Sutherland., City Attorney's Office, 

Billings, Montana 

Submitted: September 18, 1986 

Decided: November 24, 1986 

Filed: 

p :, , ,1986 
Mr. 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 to dismiss, alleging that he was not operating a motor 

vehicle "upon the ways of the state open to the public," as 

required by the statute. The motion to dismiss was denied. 

Defendant was again convicted of violating § 61-8-401 (1) (a), 

MCA. Defendant appeals the District Court's failure to grant 

his motion to dismiss. 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 consists of five levels of parking 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 general public may also use unoccupied spaces 

on the two lower levels. 

Use of the garage is controlled by employees of the 

owner of the garage. The parking attendant occupies a 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 renters need not stop at the booth. 

2 
Defendant 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 

for bicycles and motorcycles. Defendant advised the parking 

attendant of the accident and was subsequently arrested. 

The sole issue raised 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 statute under which defendant was charged, 

5 61-8-401, MCA, states: 

Persons under the influence of alcohol or drugs. 

(1) It is unlawful and punishable as provided in 

61-8-714 for any person who is under the influence 

of: 

(a) alcohol to drive or be in actual physical 

control of a vehicle upon the ways of this state 

open to the public. 

"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 for public travel" nor 

"in common use by the public" because there is only one way 

to access the facility, access is achieved only upon 

obtaining a ticket from the parking 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 "the ways 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 legislature had in mind. 

Our statute is patterned 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 a private 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 "with the 

express or implied consent of the owner"; she did 

not think that this adds anything, and it is just 

one more thing they are going to have to prove. 

She indicated that they would have to bring in the 

manager of K-Mart to show that they do have 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 

the way in connection with parking lots, the lot in 

front of the bar, 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 to be one more conflict that 

can come up in a trial and she felt that clearly, 

in any parking lot or driveway, [one] does have the 

express or implied consent of the owner but it gets 

technical in legal terms to prove what implied 

consent is. 

House Judiciary Committee Minutes, March 11, 1983, pp. 4, 6. 

Furthermore, when Chairman Brown questioned whether "the 

language 'in common use by the public' would imply that the 
bar 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 statute means are not binding on this Court. However, 

from the discussion had in both the House and Senate 

Judiciary Committees with respect to this statute, it is 

clear that the statute was 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 use by 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. 

In City of Seattle v. 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 - 10 M.P.H." 

However, local residents parked along the sides and used the 

road to access their homes. Commercial vehicles also 

regularly used the road. The Washington Supreme Court found 

the road to be a "road . . . adapted to and fitted for 

travel, that is in common use by the public with 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 private parking lot located 

at a major intersection. The parking lot was held by the 

court to be an area covered by the traffic ordinance because 

of its easy access to adjoining streets and its history of 

use by the public frequenting two taverns. 

Similarly, the Northern Hotel's parking garage not only 

has a history of use by the public, 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 is a£ 

We concur: I