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Management Personnel Servs. State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. "
Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep. Key v. Town of Kinsey, 424 So. 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. " 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. Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. Adams v. State, 697 P. 2d 622, 625 (Wyo. 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. 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 released. Those were the facts in the Court of Special Appeals' decision in Gore v. State, 74 143, 536 A. 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. Thus, we must give the word "actual" some significance.
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. 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. By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. 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. 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. Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. Mr. robinson was quite ill recently published. 1985) (Henderson, J., dissenting). 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. " No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. 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. 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. " 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.
It is "being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. " 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. 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. 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. " 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. 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. 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. 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). Mr. robinson was quite ill recently wrote. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original).
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. " Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other courts appears futile. 2d 483, 485-86 (1992). The court set out a three-part test for obtaining a conviction: "1. Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " 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.... ". 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. " Even the presence of such a statutory definition has failed to settle the matter, however. 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. 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.
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. Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " 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. 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. See Jackson, 443 U. at 319, 99 at 2789, 61 at 573; Tichnell, 287 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. " 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. " We have no such contrary indications here, so we examine the ordinary meaning of "actual physical control. " 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. 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. Id., 136 Ariz. 2d at 459.
2d 701, 703 () (citing State v. Purcell, 336 A. The engine was off, although there was no indication as to whether the keys were in the ignition or not. 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. FN6] Still, some generalizations are valid. Other factors may militate against a court's determination on this point, however. 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. Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical.
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 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. 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. The question, of course, is "How much broader? 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. 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. '
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 it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. 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. " Statutory language, whether plain or not, must be read in its context.