Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. " 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. " 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. Mr. robinson was quite ill recently won. " Further, when interpreting a statute, we assume that the words of the statute have their ordinary and natural meaning, absent some indication to the contrary. Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). The engine was off, although there was no indication as to whether the keys were in the ignition or not.
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. Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public. 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. " 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. 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. Cagle v. City of Gadsden, 495 So. The court defined "actual physical control" as " 'existing' or 'present bodily restraint, directing influence, domination or regulation, ' " and held that "the defendant at the time of his arrest was not controlling the vehicle, nor was he exercising any dominion over it. Mr. robinson was quite ill recently built. " It is "being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. " The danger is less than that involved when the vehicle is actually moving; however, the danger does exist and the degree of danger is only slightly less than when the vehicle is moving. Richmond v. State, 326 Md. Thus, rather than assume that a hazard exists based solely upon the defendant's presence in the vehicle, we believe courts must assess potential danger based upon the circumstances of each case. 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.
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. 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. " 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. Management Personnel Servs. We therefore join other courts which have rejected an inflexible test that would make criminals of all people who sit intoxicated in a vehicle while in possession of the vehicle's ignition keys, without regard to the surrounding circumstances. City of Cincinnati v. Mr. robinson was quite ill recently made. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. " In Garcia, the court held that the defendant was in "actual physical control" and not a "passive occupant" when he was apprehended while in the process of turning the key to start the vehicle.
A vehicle that is operable to some extent. As a practical matter, we recognize that any definition of "actual physical control, " no matter how carefully considered, cannot aspire to cover every one of the many factual variations that one may envision. 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. V. Sandefur, 300 Md. 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. " 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. 2d 483, 485-86 (1992). Emphasis in original).
Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988). What constitutes "actual physical control" will inevitably depend on the facts of the individual case. This view appears to stem from the belief that " '[a]n intoxicated person in a motor vehicle poses a threat to public safety because he "might set out on an inebriated journey at any moment. " It is important to bear in mind that a defendant who is not in "actual physical control" of the vehicle at the time of apprehension will not necessarily escape arrest and prosecution for a drunk driving offense. A person may also be convicted under § 21-902 if it can be determined beyond a reasonable doubt that before being apprehended he or she has actually driven, operated, or moved the vehicle while under the influence. Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep. In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles.
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. 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. 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.... ". Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other courts appears futile.
Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " The court said: "We can expect that most people realize, as they leave a tavern or party intoxicated, that they face serious sanctions if they drive. By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. 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. The question, of course, is "How much broader? We have no such contrary indications here, so we examine the ordinary meaning of "actual physical control. " The court set out a three-part test for obtaining a conviction: "1. In State v. Bugger, 25 Utah 2d 404, 483 P. 2d 442 (1971), the defendant was discovered asleep in his automobile which was parked on the shoulder of the road, completely off the travel portion of the highway. Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " The location of the vehicle can be a determinative factor in the inquiry because a person whose vehicle is parked illegally or stopped in the roadway is obligated by law to move the vehicle, and because of this obligation could more readily be deemed in "actual physical control" than a person lawfully parked on the shoulder or on his or her own property. ' " State v. Schwalk, 430 N. 2d 317, 319 (N. 1988) (quoting Buck v. North Dakota State Hgwy. Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical.
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. 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. 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. Comm'r, 425 N. 2d 370 (N. 1988), in turn quoting Martin v. Commissioner of Public Safety, 358 N. 2d 734, 737 ()); see also Berger v. District of Columbia, 597 A.
Other factors may militate against a court's determination on this point, however. Id., 136 Ariz. 2d at 459. At least one state, Idaho, has a statutory definition of "actual physical control. " This view, at least insofar as it excuses a drunk driver who was already driving but who subsequently relinquishes control, might be subject to criticism as encouraging drunk drivers to test their skills by attempting first to drive before concluding that they had better not. State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. 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. We believe that the General Assembly, particularly by including the word "actual" in the term "actual physical control, " meant something more than merely sleeping in a legally parked vehicle with the ignition off. Neither the statute's purpose nor its plain language supports the result that intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty. We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol. Even the presence of such a statutory definition has failed to settle the matter, however. As long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it. 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. In Zavala, an officer discovered the defendant sitting unconscious in the driver's seat of his truck, with the key in the ignition, but off.
2d 701, 703 () (citing State v. Purcell, 336 A. FN6] Still, some generalizations are valid. 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. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. 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). Thus, we must give the word "actual" some significance. Active or constructive possession of the vehicle's ignition key by the person charged or, in the alternative, proof that such a key is not required for the vehicle's operation; 2.
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