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STATE OF CONNECTICUT v. ANDREW C. HAIGHT
(SC 17435)
Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.
Argued May 15—officially released August 22, 2006

Sarah Hanna, special deputy assistant state’s attorney,
with whom, on the brief, were David I. Cohen,
state’s attorney, and Tiffany M. Lockshier, deputy assistant
state’s attorney, for the appellant (state).
Brenden Leydon, with whom was Mark D. Phillips,
for the appellee (defendant).
Opinion

ZARELLA, J. The sole issue in this appeal is whether
the defendant, Andrew C. Haight, ‘‘operated’’ a motor
vehicle under the influence of intoxicating liquor in
violation of General Statutes § Connecticut DUI Statute (a) when he was
asleep in the driver’s seat of his vehicle with the key
inserted into the ignition. Because we conclude that
this action was sufficient to constitute the operation
of a motor vehicle, we reverse the judgment of the
Appellate Court.
The record reflects the following relevant facts and
procedural history. Shortly after midnight on October
20, 2001, Officer Kevin J. Dowling of the New Canaan
police department observed a Lexus RX 300 legally
parked on Elm Street in New Canaan. The vehicle’s
headlights were illuminated, but the motor was not
running. Dowling initially believed that the vehicle was
unoccupied but, after briefly leaving the scene and then
returning, Dowling discovered the defendant asleep in
the driver’s seat. Dowling roused the defendant and,
upon opening the vehicle’s door, heard a warning chime.
Dowling observed the key in the ignition but did not
notice its position. The defendant submitted to a series
of field sobriety tests and was arrested after failing
them. He subsequently submitted to breath tests, which
he also failed.
The record also reflects that a key inserted into the
ignition of a Lexus RX 300 can be turned to four positions:
off, accessory, on and start. The key must be
turned to the ‘‘start’’ position initially to engage the
motor, and to the ‘‘on’’ position to continue running the
motor. The headlights of the RX 300 may be illuminated
regardless of whether the key is in the ignition. When
the door of an RX 300 is open and the key is in the
ignition in either the ‘‘off’’ or ‘‘accessory’’ position, a
warning chime will sound.
The defendant thereafter was charged with operating
a motor vehicle while under the influence of intoxicating
liquor in violation of § Connecticut DUI Statute (a). The defendant
filed a motion to dismiss the charge on the ground that
‘‘the arresting [officer] did not, as a matter of law, have
reasonable grounds to believe [that] the defendant was
committing, or had committed, a crime . . . .’’ Following
an evidentiary hearing, the trial court denied the
defendant’s motion to dismiss, concluding that ‘‘[it]
[was] for the trier of [fact] . . . to determine if there
was ‘operation’ ’’ of the motor vehicle. The defendant
then entered a conditional plea of nolo contendere,1
and the trial court rendered judgment in accordance
with the plea. The defendant subsequently appealed
from the judgment of the trial court to the Appellate
Court.
The Appellate Court reversed the judgment of the
trial court, concluding that ‘‘the state did not factually
support its allegation of operation by presenting evidence
that a key was in the motor vehicle’s ignition,
while such key was neither in the ‘on’ nor ‘start’ positions
of the ignition, even when the motor vehicle’s
headlamps were illuminated.’’ State v. Haight, 88 Conn.
App. 235, 239–40, 869 A.2d 251 (2005). We granted the
state’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly
conclude that at the time of his arrest the defendant
was not operating his motor vehicle?’’ State v. Haight,
273 Conn. 939, 875 A.2d 44 (2005).
The state argues that the defendant ‘‘operated’’ his
vehicle under the definition of that term as set forth in
State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939).2 The
state argues that, because ‘‘a jury reasonably could find
that . . . the defendant operated his motor vehicle
when he intentionally inserted his key into the ignition
and partially turned it,’’ the trial court’s denial of the
defendant’s motion to dismiss was proper, and that the
defendant’s conviction therefore should stand.
The defendant objects to the state’s assertion that he
partially turned the key in the ignition, an assertion that
he characterizes as ‘‘conjectural . . . .’’ The defendant
instead analogizes the facts of this case to those of
State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960),
a decision that, according to the defendant, establishes
‘‘beyond question that simply having a key in the ignition
is not sufficient to establish a prima facie case of
operating [a motor vehicle] under the influence.’’ As
such, the defendant argues, the evidence is insufficient
to establish that he was operating a motor vehicle while
under the influence of intoxicating liquor. Because we
disagree with both the defendant’s interpretation of
DeCoster and his claim of evidentiary insufficiency, we
reverse the judgment of the Appellate Court.
‘‘As a preliminary matter, we set forth the standard
of review. A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . .
A motion to dismiss tests, inter alia, whether, on the
face of the record, the court is without jurisdiction.
. . . [O]ur review of the trial court’s ultimate legal conclusion
and resulting [decision to] grant . . . the
motion to dismiss will be de novo.’’ (Internal quotation
marks omitted.) State v. Welwood, 258 Conn. 425, 433,
780 A.2d 924 (2001).
The state’s claim also implicates a question of statutory
interpretation. Our review is therefore plenary.
E.g., Parrot v. Guardian Life Ins. Co. of America, 273
Conn. 12, 18, 866 A.2d 1273 (2005). When interpreting
a statute, ‘‘[o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.’’
(Internal quotation marks omitted.) Perodeau v. Hartford,
259 Conn. 729, 735, 792 A.2d 752 (2002). To do
so, we first consult ‘‘the text of the statute itself and
its relationship to other statutes. If, after examining
such text and considering such relationship, the meaning
of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ General Statutes § 1-2z.
We begin our analysis by looking to the statutory
provision in question. General Statutes § Connecticut DUI Statute (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 on a public highway of this
state . . . (1) while under the influence of intoxicating
liquor or any drug or both, or (2) while such person
has an elevated blood alcohol content. . . .’’ Section
Connecticut DUI Statute (a) prohibits operating a motor vehicle while
under the influence rather than merely driving a motor
vehicle while under the influence. It is well settled that
‘‘operating’’ encompasses a broader range of conduct
than does ‘‘driving.’’ See State v. Swift, supra, 125 Conn.
402–403 (statute ‘‘refers to persons who shall operate
a motor vehicle, and is not confined to persons who
shall drive a motor vehicle’’); see also State v. Gordon,
84 Conn. App. 519, 527, 854 A.2d 74 (‘‘[t]he definition
of ‘operation’ does not require [a] defendant to drive
the car’’), cert. denied, 271 Conn. 941, 861 A.2d 516
(2004). Neither § Connecticut DUI Statute nor any related statute, however,
defines ‘‘operation’’ of a motor vehicle. Moreover,
the legislative history of § Connecticut DUI Statute and its predecessor
statutes offers no insight into the definition of ‘‘operation’’
of a motor vehicle.
In State v. Swift, supra, 125 Conn. 403, however, this
court set forth the definition of ‘‘operation’’ of a motor
vehicle that our courts have applied since. In that case,
the defendant, Lyman F. Swift, ‘‘[a]fter visiting various
dramshops in New London during the evening and partaking
of intoxicating liquors . . . drove a car to Norwich
. . . and returned to New London . . . . In an
attempt to avoid another car on Williams Street in New
London, [Swift] drove his car into a bank. He was under
the influence of intoxicating liquors at the time . . . .
Police officers arrived on the scene immediately thereafter
and found [Swift] sitting behind the wheel
attempting to start the engine of the car while [a passenger],
the only other occupant of the car at the time of
the accident, was attempting to push it.’’ Id., 401. Swift
claimed that he never had driven the vehicle and entered
the driver’s seat only after the vehicle had collided with
the bank, when his companion had left the vehicle to
attempt to push it. Id.
At the conclusion of Swift’s ensuing trial on the
charge of operating a motor vehicle while under the
influence of intoxicating liquor, the trial court
instructed the jury regarding the definition of ‘‘operation’’
as follows: ‘‘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. So if you find that the accused, while under the
influence of intoxicating liquor, got into the automobile,
while it was standing [at the] side of the street, and
manipulated the machinery of the motor for the purpose
of putting the automobile into motion, the accused
being in the car and in a position to control its movements,
the accused would be guilty of operating a car
under the influence of intoxicating liquor, whether the
automobile moved or not.’’ (Emphasis added; internal
quotation marks omitted.) Id., 403. Although Swift challenged
the trial court’s instruction on appeal; id., 402;
this court concluded that the instruction was proper
and upheld Swift’s conviction and the trial court’s
instruction. Id., 403, 405.
The present case is analogous to Swift. In both cases,
the defendant failed to set the vehicle in motion, or even
to run the vehicle’s motor. Nothing in our definition of
‘‘operation’’ requires the vehicle to be in motion or its
motor to be running. See, e.g., id., 403; State v. Lariviere,
2 Conn. Cir. Ct. 221, 225, 197 A.2d 529 (1963) (‘‘a person
may be convicted of ‘operating’ a motor vehicle while
under the influence of intoxicating liquor without it
necessarily being shown that the automobile was actually
in motion or even had the engine going’’). 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, ‘‘will set in motion the motive power of
the vehicle.’’ (Internal quotation marks omitted.) State
v. Swift, supra, 125 Conn. 403. Each act therefore constitutes
‘‘operation’’ of the vehicle under the definition set
forth in Swift. See, e.g., State v. Jones, 2 Conn. Cir. Ct.
605, 607, 203 A.2d 447 (1964) (attempting to start engine
constitutes operation, even if motor fails to ‘‘catch’’).
Numerous courts in other jurisdictions have concluded
that a motorist who is found sleeping or unconscious
in a stationary vehicle with the motor not running
violates the applicable prohibition on operating or being
in actual physical control of a motor vehicle while intoxicated
or under the influence of intoxicating liquor or
drugs. E.g., State v. Gill, 70 Ohio St. 3d 150, 154, 637
N.E.2d 897 (1994) (concluding that defendant in each
case violated statute prohibiting operation of motor
vehicle while under influence of alcohol when he ‘‘was
intoxicated and in the driver’s seat of his vehicle with
the key in the ignition,’’ regardless of whether motor
was running), cert. denied sub nom. Robinson v. Sylvania,
514 U.S. 1023, 115 S. Ct. 1371, 131 L. Ed. 2d 227
(1995); Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim.
App. 1975) (concluding that defendant violated statute
prohibiting being in actual physical control of motor
vehicle while under influence of intoxicating liquor
when he was found sleeping or unconscious in driver’s
seat of vehicle with key in ignition and motor not running);
State v. Hall, 353 N.W.2d 37, 42 (S.D. 1984) (concluding
that defendant violated statute prohibiting
being in actual physical control of vehicle while under
influence of alcohol when he was found sleeping or
unconscious in driver’s seat of vehicle with key in ignition
and motor not running ); Adams v. State, 697 P.2d
622, 625 (Wyo. 1985) (concluding that defendant violated
statute prohibiting having actual physical control
of vehicle while under influence of intoxicating liquor
when he was found unconscious in driver’s seat of
vehicle with lights off, key in ignition and motor not
running); see also State v. Cooper, 120 Ohio App. 3d
416, 419–20, 698 N.E.2d 64 (1997) (‘‘[a] person sitting
in the driver’s seat of an automobile with the keys in
the ignition is ‘operating’ a motor vehicle . . . even if
the engine is not running’’); Stevenson v. Falls Church,
243 Va. 434, 439, 416 S.E.2d 435 (1992) (Compton, J.,
dissenting) (‘‘when a drunk [person] is sitting in the
driver’s seat of a parked, operable motor vehicle, and
he is alone and has inserted the key in the ignition
switch, he is in ‘actual physical control’ of the vehicle’’);
cf. Atkinson v. State, 331 Md. 199, 219, 627 A.2d 1019
(1993) (‘‘There [was] no evidence that [the defendant]
did anything but climb into his vehicle, put the key in
the ignition, and go to sleep. Without such evidence,
and in light of . . . [the fact] that [the defendant] was
not in ‘actual physical control’ of the vehicle when
apprehended . . . his conviction [was reversed under
statute prohibiting driving or attempting to drive while
intoxicated].’’ [Emphasis added.]). But see Stevenson
v. Falls Church, supra, 438 (‘‘[b]ecause the presence of
the key in the ignition switch in the off position did not
engage the mechanical or electrical equipment of [the
defendant’s] car, [the defendant] did not ‘drive or operate’
the car’’).
The Ohio case of State v. Gill, supra, 70 Ohio St. 3d
150, is particularly persuasive because § 4511.19 of the
Ohio Revised Code prohibits, in language similar to that
of § Connecticut DUI Statute (a), the ‘‘operat[ion] [of] any vehicle . . .
within th[e] state’’ by any ‘‘person under the influence
of alcohol . . . .’’ Ohio Rev. Code Ann. § 4511.19 (A)
(1) (Banks-Baldwin 1993). In that consolidated case,
each defendant was found sleeping in the driver’s seat
of his respective vehicle with the key in the ignition
and the motor not running.3 State v. Gill, supra, 154.
The court rejected the defendants’ argument that the
vehicle’s motor must be running for ‘‘operation’’ to have
occurred. Id., 153–54. The court instead upheld the
defendants’ convictions, reasoning that ‘‘[a] clear purpose
of [Ohio Revised Code §] 4511.19 is to discourage
persons from putting themselves in the position in
which they can potentially cause the movement of a
motor vehicle while intoxicated . . . .’’ Id., 154.
We previously have recognized Connecticut’s ‘‘unambiguous
policy . . . [of] ensuring that our highways are
safe from the carnage associated with drunken drivers.’’
State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993).
In light of this policy and the fact that the insertion of
a key into the ignition is an ‘‘act . . . which alone or
in sequence will set in motion the motive power of the
vehicle’’; (internal quotation marks omitted) State v.
Swift, supra, 125 Conn. 403; we conclude that the defendant’s
act of inserting the key into the ignition constituted
operation of a motor vehicle within the meaning
of § Connecticut DUI Statute (a).
The defendant argues that, contrary to the state’s
assertion,4 the evidence was insufficient to support a
reasonable inference that the key was found in the
‘‘accessory’’ position of the ignition rather than in the
‘‘off’’ position. The distinction between the two positions,
however, is inconsequential. Mere 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’’ (internal quotation marks omitted); id.; and,
therefore, itself constitutes operation of the vehicle.
Whether the defendant turned the key in the ignition
does not affect the fact that he was operating the vehicle
within the meaning of § Connecticut DUI Statute simply by inserting the
key into the ignition.
The defendant relies heavily on our decision in State
v. DeCoster, supra, 147 Conn. 502, to support his claim
that inserting the key into the ignition does not constitute
the ‘‘operation’’ of a vehicle. In that case, a police
officer found the defendant, Alvah DeCoster, intoxicated
and slumped over the steering wheel of his car,
which was stopped on the road. Id., 504. ‘‘The key was
in the switch but the ignition was turned off. There was
damage to the car on the right side and both tires on
that side were flat.’’ Id. Traffic signs at a nearby rotary
had been knocked down. Id. We reversed DeCoster’s
conviction of operating a motor vehicle under the influence
of intoxicating liquor, reasoning that ‘‘[n]o one
had seen [DeCoster] operating the car, and there was
no evidence to show how long it had been standing in
the place where it was found. Even though the court
might infer that [DeCoster’s] car had struck the signs
at the traffic circle, there was no evidence whatever to
show when or how the collision occurred.’’ Id., 504–505.
In the course of our analysis, we noted that, ‘‘[a]t the
time of his arrest, [DeCoster] was not operating a motor
vehicle within the meaning of the law.’’ Id., 504.
The defendant seizes upon this last remark to argue
that DeCoster established ‘‘beyond question that simply
having a key in the ignition is not sufficient to establish
a prima facie case of operating [a motor vehicle] under
the influence.’’ The remark that the defendant seizes
upon, however, was dictum. The issue of whether the
defendant in DeCoster was operating his vehicle at the
time of his arrest was not contested.5 In DeCoster, the
issue before this court, instead, was the sufficiency of
circumstantial evidence to sustain DeCoster’s conviction.
See id., 505 (concluding that, ‘‘in the absence of
any evidence as to the time when the defendant last
operated his car, the conclusion of the trial court that
he violated the statute was unwarranted and invaded
the realm of speculation and conjecture’’). The statement
that, ‘‘[a]t the time of his arrest, [DeCoster] was
not operating a motor vehicle within the meaning of
the law’’; id., 504; did not bear on a contested issue, was
unnecessary to the resolution of the case and, therefore,
was dictum. It does not thwart our conclusion that the
defendant in the present case engaged in conduct—
specifically, inserting the key into the ignition—sufficient
to constitute the ‘‘operation’’ of a motor vehicle
under Swift.
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.
1 The defendant’s plea was accepted pursuant to General Statutes § 54-
94a and Practice Book § 61-6 (a) (2) (i).
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere conditional
on the right to take an appeal from the court’s denial of the defendant’s
. . . motion to dismiss, the defendant after the imposition of sentence may
file an appeal within the time prescribed by law provided a trial court has
determined that a ruling on such . . . motion to dismiss would be dispositive
of the case. The issue to be considered in such an appeal shall be
limited to whether it was proper for the court to have denied the . . .
motion to dismiss. . . .’’
Practice Book § 61-6 (a) (2) (i) provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere
conditional on the right to take an appeal from the court’s denial of the
defendant’s . . . (c) . . . motion to dismiss, the defendant after the imposition
of sentence may file an appeal within the time prescribed by law. The
issue to be considered in such appeal shall be limited to whether it was
proper for the court to have denied . . . the motion to dismiss. . . .’’
2 The language of the statutory prohibition against operating a motor
vehicle while under the influence of intoxicating liquor or any drug has not
changed since its enactment in 1921. Compare General Statutes § Connecticut DUI Statute
(a) with Public Acts 1921, c. 400, § 30.
3 We note that, with respect to one of the defendants in Gill, the key in
the ignition was found to be in the accessory position. State v. Gill, supra,
70 Ohio St. 3d 151 (discussing facts of case number 93-1098).
4 The state alleged in its brief that ‘‘the defendant . . . got into his car
. . . inserted his key into the ignition and partially turned it.’’
5 In fact, the arguments advanced by both parties in DeCoster assumed
that DeCoster was not operating his vehicle at the time of his arrest. Although
it was undisputed that a police officer had observed DeCoster slumped over
his steering wheel with the key in the ignition before arresting him, DeCoster
argued to this court that ‘‘[n]o one saw the automobile being operated either
by [him] or any other person.’’ State v. DeCoster, Conn. Supreme Court
Records & Briefs, April Term, 1960, Pt. A-388, Defendant’s Brief p. 4. Correspondingly,
the state argued that the direct testimony of an eyewitness was
not necessary to find DeCoster guilty of violating § Connecticut DUI Statute but described
DeCoster as ‘‘[t]he only eye witness’’ to any such conduct, despite the fact
that it was undisputed that a police officer had observed DeCoster slumped
over his steering wheel with the key in the ignition before arresting him.
Id., State’s Brief p. 7. The implication of both DeCoster’s and the state’s
arguments is that DeCoster was not operating his vehicle when the officer
discovered him and arrested him.