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CVO – Defining ‘Operation’

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Criminal vehicular operation (CVO) is a charge with steep and long-lasting consequences. Central to a CVO is that the defendant was “operating” the motor vehicle. This differs than the DWI law – which has similar fact patterns – because the DWI law includes individuals that are “driving, operating, or in physical control” of the vehicle. A much broader definition, clearly.

The definition of ‘operating’ in the CVO context is unsettled. A recent Minnesota Court of Appeals opinion (State v. Henderson, Court File No. A16-0575) tried to address it head-on. In the case, the passenger grabbed the steering wheel, yanking it towards him, which caused the vehicle to veer off the road and the resulting crash caused serious injuries.

The defendant argued that he was not ‘operating’ the motor vehicle, but rather only had physical control of the vehicle, which would not satisfy the elements of the CVO law. The defendant pointed to the definition of ‘operating’ used under the DWI law, which states: “[a] person ‘operates’ a motor vehicle when the person manipulates or activates any of the controls of a motor vehicle necessary to put the vehicle into motion.” Under this definition, the defendants actions, arguably, only relate to keeping the vehicle in motion, rather than putting the vehicle in motion. The defendant then cited a civil case decision that further defined operating as requiring control over both the steering wheel and its pedals.

The Court of Appeals dismissed the defendant’s argument that the civil case controls because that case revolved around the definition of operating a vehicle as it relates insurance coverage. Prior criminal decisions have declined to follow this case for that reason and this Court of Appeals decision agrees.

The Court of Appeals then distinguished the CVO law from the DWI law because it is codified under the criminal code, and not the DWI chapter. It then cited a prior case that held: “[t]o drive . . . require[s] the most direct personal participation in piloting the vehicle, ‘to operate’ would require something less, and ‘to be in physical control’ would require the least.”

Eventually, after acknowledging the many different interpretations and applications of prior courts’ attempts to define ‘operate’, a clear definition has not evolved as it applies to a CVO. As such, the Court of Appeals held that the district court did not err when it found that the defendant operated the vehicle when he grabbed the steering wheel and yanked it to his side. The Court plainly stated that this amounts to more than physical control. Soon thereafter, the Court then broadly stated that this holding is consistent with public policy for safety on the roadways and with the plain meaning of ‘operate’ (which is an amazing conclusion since it just spent multiple pages explaining how no one definition has evolved yet).

Despite some detailed analysis, this opinion still fails to truly define ‘operate’ in the CVO context. At most, it defines what facts may be consistent with the definition of operation. But, the opinion is merely approving a lower courts decision based upon the standard of review.

Succinctly putting it, without offering a clear definition of operate, this area of law is still very much an uncertainty, which requires an experienced and crafty criminal defense attorney to litigate this issue.



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