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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. 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. 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... Mr. robinson was quite ill recently sold. turn off the ignition so that the vehicle's engine is not running. NCR Corp. Comptroller, 313 Md.
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. 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. Statutory language, whether plain or not, must be read in its context. 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. " 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. Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other courts appears futile. 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. Mr. robinson was quite ill recently said. 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. 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. "
Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep. 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. " 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. 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. 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. 2d 407, 409 (D. C. 1991) (stating in dictum that "[e]ven a drunk with the ignition keys in his pocket would be deemed sufficiently in control of the vehicle to warrant conviction. Emphasis in original). Adams v. State, 697 P. 2d 622, 625 (Wyo. The court set out a three-part test for obtaining a conviction: "1. A vehicle that is operable to some extent. 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. Mr. robinson was quite ill recently left. 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).
Many of our sister courts have struggled with determining the exact breadth of conduct described by "actual physical control" of a motor vehicle, reaching varied results. 2d 483, 485-86 (1992). Those were the facts in the Court of Special Appeals' decision in Gore v. State, 74 143, 536 A. 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. 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. " In the instant case, stipulations that Atkinson was in the driver's seat and the keys were in the ignition were strong factors indicating he was in "actual physical control. " Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. " 3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid. 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. 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). By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988).
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. Webster's also defines "control" as "to exercise restraining or directing influence over. " 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. 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. Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine. See Jackson, 443 U. at 319, 99 at 2789, 61 at 573; Tichnell, 287 Md. 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 this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles.
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. 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. City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. 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. 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. FN6] Still, some generalizations are valid. 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 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. " 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 Zavala, an officer discovered the defendant sitting unconscious in the driver's seat of his truck, with the key in the ignition, but off. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). 2d 1144, 1147 (Ala. 1986). We believe no such crime exists in Maryland. 2d 701, 703 () (citing State v. Purcell, 336 A.
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. Superior Court for Greenlee County, 153 Ariz. 2d at 152 (citing Zavala, 136 Ariz. 2d at 459). At least one state, Idaho, has a statutory definition of "actual physical control. " Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. 1985) (Henderson, J., dissenting). 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. 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 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. ' " State v. Schwalk, 430 N. 2d 317, 319 (N. 1988) (quoting Buck v. North Dakota State Hgwy. Key v. Town of Kinsey, 424 So. 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. ' Even the presence of such a statutory definition has failed to settle the matter, however. 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. "
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