State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " As we have already said with respect to the legislature's 1969 addition of "actual physical control" to the statute, we will not read a statute to render any word superfluous or meaningless. Mr. robinson was quite ill recently reported. 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.
The engine was off, although there was no indication as to whether the keys were in the ignition or not. 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. V. Sandefur, 300 Md. 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. Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). 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. For the intoxicated person caught between using his vehicle for shelter until he is sober or using it to drive home, [prior precedent] encourages him to attempt to quickly drive home, rather than to sleep it off in the car, where he will be a beacon to police. 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. " In State v. Mr robinson was quite ill recently. 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. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. 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. 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. " 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. " 3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid.
Superior Court for Greenlee County, 153 Ariz. 2d at 152 (citing Zavala, 136 Ariz. 2d at 459). Even the presence of such a statutory definition has failed to settle the matter, however. What constitutes "actual physical control" will inevitably depend on the facts of the individual case. 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. 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. In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. Mr. robinson was quite ill recently found. 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. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). 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. "
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. Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988). Key v. Town of Kinsey, 424 So. In People v. Cummings, 176 293, 125 514, 517, 530 N. 2d 672, 675 (1988), the Illinois Court of Appeals also rejected a reading of "actual physical control" which would have prohibited intoxicated persons from entering their vehicles to "sleep it off. " Id., 136 Ariz. 2d at 459. 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. The court set out a three-part test for obtaining a conviction: "1. 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. Webster's also defines "control" as "to exercise restraining or directing influence over. " 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. 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. Emphasis in original). The question, of course, is "How much broader?
2d 1144, 1147 (Ala. 1986). 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). 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. 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. In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. " Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical. The same court later explained that "actual physical control" was "intending to prevent intoxicated drivers from entering their vehicles except as passengers or passive occupants as in Bugger.... " Garcia v. Schwendiman, 645 P. 2d 651, 654 (Utah 1982) (emphasis added).
One can discern a clear view among a few states, for example, that "the purpose of the 'actual physical control' offense is [as] a preventive measure, " State v. Schuler, 243 N. W. 2d 367, 370 (N. D. 1976), and that " 'an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. ' 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. NCR Corp. Comptroller, 313 Md. Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine.
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