While the Idaho statute is quite clear that the vehicle's engine must be running to establish "actual physical control, " that state's courts have nonetheless found it necessary to address the meaning of "being in the driver's position. " Quoting Hughes v. State, 535 P. Mr. robinson was quite ill recently found. 2d 1023, 1024 ()) (both cases involved defendant seated behind the steering wheel of vehicle parked partially in the roadway with the key in the ignition). The court concluded that "while the defendant remained behind the wheel of the truck, the pulling off to the side of the road and turning off the ignition indicate that defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness, " and it reversed his conviction. Even the presence of such a statutory definition has failed to settle the matter, however. Thus, we must give the word "actual" some significance.
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The inquiry must always take into account a number of factors, however, including the following: 1) whether or not the vehicle's engine is running, or the ignition on; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle's ignition key is located; 5) whether the vehicle's headlights are on; 6) whether the vehicle is located in the roadway or is legally parked. Cagle v. City of Gadsden, 495 So. The Supreme Court of Ohio, for example, defined "actual physical control" as requiring that "a person be in the driver's seat of a vehicle, behind the steering wheel, in possession of the ignition key, and in such condition that he is physically capable of starting the engine and causing the vehicle to move. " ' " State v. Schwalk, 430 N. 2d 317, 319 (N. 1988) (quoting Buck v. North Dakota State Hgwy. Although the definition of "driving" is indisputably broadened by the inclusion in § 11-114 of the words "operate, move, or be in actual physical control, " the statute nonetheless relates to driving while intoxicated. In sum, the primary focus of the inquiry is whether the person is merely using the vehicle as a stationary shelter or whether it is reasonable to assume that the person will, while under the influence, jeopardize the public by exercising some measure of control over the vehicle. Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). Accordingly, the words "actual physical control, " particularly when added by the legislature in the disjunctive, indicate an intent to encompass activity different than, and presumably broader than, driving, operating, or moving the vehicle. Mr. robinson was quite ill recently created. Indeed, once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so and will generally be in "actual physical control" of the vehicle. The court set out a three-part test for obtaining a conviction: "1. Accordingly, a person is in "actual physical control" if the person is presently exercising or is imminently likely to exercise "restraining or directing influence" over a motor vehicle while in an intoxicated condition. A vehicle that is operable to some extent.
For example, on facts much akin to those of the instant case, the Supreme Court of Wyoming held that a defendant who was found unconscious in his vehicle parked some twenty feet off the highway with the engine off, the lights off, and the key in the ignition but off, was in "actual physical control" of the vehicle. Webster's also defines "control" as "to exercise restraining or directing influence over. " Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " While we wish to discourage intoxicated individuals from first testing their drunk driving skills before deciding to pull over, this should not prevent us from allowing people too drunk to drive, and prudent enough not to try, to seek shelter in their cars within the parameters we have described above. The Arizona Court of Appeals has since clarified Zavala by establishing a two-part test for relinquishing "actual physical control"--a driver must "place his vehicle away from the road pavement, outside regular traffic lanes, and... turn off the ignition so that the vehicle's engine is not running. Mr. robinson was quite ill recently made. In Alabama, "actual physical control" was initially defined as "exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. " Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter.
Mr. Robinson Was Quite Ill Recently Found
For example, a person asleep on the back seat, under a blanket, might not be found in "actual physical control, " even if the engine is running. 3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid. The policy of allowing an intoxicated individual to "sleep it off" in safety, rather than attempt to drive home, arguably need not encompass the privilege of starting the engine, whether for the sake of running the radio, air conditioning, or heater. As for the General Assembly's addition of the term "actual physical control" in 1969, we note that it is a generally accepted principle of statutory construction that a statute is to be read so that no word or phrase is "rendered surplusage, superfluous, meaningless, or nugatory. " 2d 701, 703 () (citing State v. Purcell, 336 A. Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. "
Emphasis in original). 2d 483, 485-86 (1992). It is "being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. " And while we can say that such people should have stayed sober or planned better, that does not realistically resolve this all-too-frequent predicament. As long as such individuals do not act to endanger themselves or others, they do not present the hazard to which the drunk driving statute is directed. In view of the legal standards we have enunciated and the circumstances of the instant case, we conclude there was a reasonable doubt that Atkinson was in "actual physical control" of his vehicle, an essential element of the crime with which he was charged. Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. NCR Corp. Comptroller, 313 Md.
Mr. Robinson Was Quite Ill Recently Created
Id., 136 Ariz. 2d at 459. 2d 735 (1988), discussed supra, where the court concluded that evidence of the ignition key in the "on" position, the glowing alternator/battery light, the gear selector in "drive, " and the warm engine, sufficiently supported a finding that the defendant had actually driven his car shortly before the officer's arrival. Position of the person charged in the driver's seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move; 3. City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. The court said: "An intoxicated person seated behind the steering wheel of an automobile is a threat to the safety and welfare of the public. Thus, our construction of "actual physical control" as permitting motorists to "sleep it off" should not be misconstrued as encouraging motorists to try their luck on the roadways, knowing they can escape arrest by subsequently placing their vehicles "away from the road pavement, outside regular traffic lanes, and... turn[ing] off the ignition so that the vehicle's engine is not running. " What may be an unduly broad extension of this "sleep it off" policy can be found in the Arizona Supreme Court's Zavala v. State, 136 Ariz. 356, 666 P. 2d 456 (1983), which not only encouraged a driver to "sleep it off" before attempting to drive, but also could be read as encouraging drivers already driving to pull over and sleep. While the preferred response would be for such people either to find alternate means of getting home or to remain at the tavern or party without getting behind the wheel until sober, this is not always done. Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep.
See Jackson, 443 U. at 319, 99 at 2789, 61 at 573; Tichnell, 287 Md. In those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily 'sleeping it off' in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not 'in actual physical control' of the vehicle.... ". More recently, the Alabama Supreme Court abandoned this strict, three-pronged test, adopting instead a "totality of the circumstances test" and reducing the test's three prongs to "factors to be considered. " We believe that, by using the term "actual physical control, " the legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle. Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical. In these states, the "actual physical control" language is construed as intending "to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers. " See, e. g., State v. Woolf, 120 Idaho 21, 813 P. 2d 360, 362 () (court upheld magistrate's determination that defendant was in driver's position when lower half of defendant's body was on the driver's side of the front seat, his upper half resting across the passenger side).
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