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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. 3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid. 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. " 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. 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 released. " 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.

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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. 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. Key v. Town of Kinsey, 424 So. 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 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. Mr. robinson was quite ill recently played most played. " Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " 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 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. "

Statutory language, whether plain or not, must be read in its context. 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. V. Mr. robinson was quite ill recently published. Sandefur, 300 Md. 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.

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2d 701, 703 () (citing State v. Purcell, 336 A. 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. 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. 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. Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical.

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. 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. " Emphasis in original). Other factors may militate against a court's determination on this point, however. 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. 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. 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.

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In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. Webster's also defines "control" as "to exercise restraining or directing influence over. " 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. See Jackson, 443 U. at 319, 99 at 2789, 61 at 573; Tichnell, 287 Md.

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. Adams v. State, 697 P. 2d 622, 625 (Wyo. We have no such contrary indications here, so we examine the ordinary meaning 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. 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.... ". 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. Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988). 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. Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. " 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). 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. State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). The engine was off, although there was no indication as to whether the keys were in the ignition or not.

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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. 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. " 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 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.

Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep. 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. Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " The court set out a three-part test for obtaining a conviction: "1. 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. " 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. The question, of course, is "How much broader?

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. 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. Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). Id., 136 Ariz. 2d at 459. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). 2d 483, 485-86 (1992). Thus, we must give the word "actual" some significance. 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. By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. 1985) (Henderson, J., dissenting).

Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine. In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. " 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. " What constitutes "actual physical control" will inevitably depend on the facts of the individual case. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. 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. " Superior Court for Greenlee County, 153 Ariz. 2d at 152 (citing Zavala, 136 Ariz. 2d at 459). 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. " 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. City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert.

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