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Statutory language, whether plain or not, must be read in its context. Mr. robinson was quite ill recently played most played. In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988). Webster's also contrasts "actual" with "potential and possible" as well as with "hypothetical.
3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid. 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. " What may be an unduly broad extension of this "sleep it off" policy can be found in the Arizona Supreme Court's Zavala v. State, 136 Ariz. 356, 666 P. 2d 456 (1983), which not only encouraged a driver to "sleep it off" before attempting to drive, but also could be read as encouraging drivers already driving to pull over and sleep. 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. 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. Thus, we must give the word "actual" some significance. 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. Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " 2d 407, 409 (D. Mr. robinson was quite ill recently got. 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.
Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). 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. 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. " 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. Other factors may militate against a court's determination on this point, however. 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. Mr robinson was quite ill recently. V. Sandefur, 300 Md. 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. " 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. 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. " Management Personnel Servs.
Cagle v. City of Gadsden, 495 So. 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. NCR Corp. Comptroller, 313 Md. 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 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.... ". City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. 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. 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. ' The question, of course, is "How much broader? No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the 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.
We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent]. Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. 1985) (Henderson, J., dissenting). Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other courts appears futile. At least one state, Idaho, has a statutory definition of "actual physical control. " 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. 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. 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).
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. 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. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). 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. 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. 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. 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. 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. 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. 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. The court set out a three-part test for obtaining a conviction: "1.
Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. " 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. Key v. Town of Kinsey, 424 So. Richmond v. State, 326 Md. The engine was off, although there was no indication as to whether the keys were in the ignition or not. It is "being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. " What constitutes "actual physical control" will inevitably depend on the facts of the individual case. 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 said: "An intoxicated person seated behind the steering wheel of an automobile is a threat to the safety and welfare of the public. Id., 136 Ariz. 2d at 459.
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. 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. 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. " State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). 2d 701, 703 () (citing State v. Purcell, 336 A. We believe no such crime exists in Maryland. A vehicle that is operable to some extent. 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.
FN6] Still, some generalizations are valid. 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 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. "