Mr. Robinson Was Quite Ill Recently — Floating Coolers : Pool Floats & Tubes : Target

July 8, 2024, 10:18 pm

Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine. By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. 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. 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. Mr. robinson was quite ill recently found. 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. Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988).

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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. 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. " It is "being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. " No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Mr. robinson was quite ill recently passed. NCR Corp. Comptroller, 313 Md. Quoting Hughes v. State, 535 P. 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). Even the presence of such a statutory definition has failed to settle the matter, however.

When the occupant is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that the inebriated person is imminently going to control the vehicle in his or her condition, we do not believe that the legislature intended for criminal sanctions to apply. 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. 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. A vehicle that is operable to some extent. 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. Mr. robinson was quite ill recently met. 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. 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.

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Thus, we must give the word "actual" some significance. In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. 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. 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. " Adams v. State, 697 P. 2d 622, 625 (Wyo. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). 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. " The court set out a three-part test for obtaining a conviction: "1. In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. " State v. Ghylin, 250 N. 2d 252, 255 (N. 1977).

Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other courts appears futile. Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. 1985) (Henderson, J., dissenting). See Jackson, 443 U. at 319, 99 at 2789, 61 at 573; Tichnell, 287 Md. We have no such contrary indications here, so we examine the ordinary meaning of "actual physical control. " The court reached this conclusion based on its belief that "it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. " Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). 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. We believe no such crime exists in Maryland. 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. Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep.

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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. " City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. 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. " See generally Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A. L. R. 3d 7 (1979 & 1992 Supp. 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. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent].

Superior Court for Greenlee County, 153 Ariz. 2d at 152 (citing Zavala, 136 Ariz. 2d at 459). Other factors may militate against a court's determination on this point, however. Key v. Town of Kinsey, 424 So. 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).

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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. 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). 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. What constitutes "actual physical control" will inevitably depend on the facts of the individual case. The question, of course, is "How much broader? 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. " 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. 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. 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.

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. " 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. Management Personnel Servs. 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. 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. 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. The engine was off, although there was no indication as to whether the keys were in the ignition or not. V. Sandefur, 300 Md. 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. " Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical.

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