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Wilson v. State ex rel Department of Public Safety12/28/1999
fluence. The Court noted that it had previously defined "actual physical control" as "' xisting' or 'present bodily restraint, directing influence, domination or regulation'" of a vehicle. Id. at 5, 603 P.2d at 1148. In Mason, the arrested driver was unconscious and intoxicated in a vehicle with the engine running and his legs close to the pedals. The Court held that by starting the engine, the driver undoubtedly "directed influence" over the automobile and was in "actual physical control." Id. at 8, 603 P.2d at 1148. It further noted it had previously held that a driver was in actual physical control of a vehicle when the keys were merely in the vehicle's ignition and the driver was unconscious. The Court upheld the driver's conviction.
If "actual physical control" can be said to exist in Mason, it certainly exists in the instant case. Wilson was not unconscious, but admittedly trying to drive. His vehicle was not turned off or even idling, but revving due to his attempts to get the car moving. The trial court therefore erred in setting aside the license revocation due to the car's inoperability.
Wilson relies on Lambert v. State, 1987 OK CR 246, 745 P.2d 1185, in which the driver of a wrecked car walked to a farmhouse and was given a ride home by the farmer. Over an hour later, the farmer told the investigating officer that he had taken the driver home and that the driver appeared drunk. The farmer and the officer went to the driver's home, and the farmer knocked on the door and called out to the driver, asking him if he was alright. The driver said "yes," and the officer entered the home, observed the driver, and arrested him for driving under the influence . The Court of Criminal Appeals held that the driver's arrest was unconstitutional.
Lambert is distinguishable from the case at bar for two reasons. First, the Lambert court based its decision on the fact that the officer made a warrantless intrusion into the driver's home prior to the point where probable cause to arrest existed. Second, though Wilson asserts the evidence in Lambert is far greater than the evidence presented in the instant case, the opposite, as detailed above, is true.
Wilson asserts in his brief that the driver of the car at the time of the accident was unknown, and suggests that another person had been driving but fled after the accident, to be replaced behind the wheel by Wilson. The answer to this assertion is that, at most, Wilson's theory presents a question for the trier of fact. He is free to assert it at trial.
For the reasons given, the decision of the trial court is reversed and this matter is remanded for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
GOODMAN, V.C.J., and RAPP, J., concur.
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