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State v. Butler6/24/2003
itself is capable of being operated or moved under its own power or otherwise. Id. at 765.
Although neither the defendant nor the State addressed the issue in briefs, the Court of Criminal Appeals aptly noted that the evidence was sufficient to support the jury's finding that the defendant was guilty of driving while under the influence of an intoxicant, rather than merely being in physical control of a motor vehicle while under the influence of an intoxicant. As we previously noted, the Lawrence factors "can be used as circumstantial evidence that the defendant had been driving the vehicle." Id. at 765 (emphasis in original). In this case, the defendant was confronted by Deputy Owen in the parking lot of Wal-Mart approximately one hundred yards away from his motorcycle with the motorcycle sparkplug in his hand. The defendant told Deputy Owen that he had driven to Wal-Mart to get a part for his motorcycle. During questioning by Deputy Owen, the defendant "reeked" of alcohol, had slurred speech, was unsteady on his feet, and had a half-empty bottle of tequila on his person.
Furthermore, the key to the motorcycle was in the ignition. Although the defendant's helmet was in the store indicating that the defendant had been there at least a short time before being confronted by Deputy Owen, taking all of the evidence into account, the jury, as the trier of fact, was not obligated to believe the defendant's assertion that he first began to drink from his bottle of tequila while shopping in the automotive department of the Wal-Mart store. Moreover, it is undisputed that the defendant's motorcycle was not flooded when it arrived in the parking lot. It became flooded sometime thereafter. Given those facts, the jury could have reasonably found that the defendant, in his drunken condition, made numerous attempts to start the engine after he had removed the sparkplug, thus causing the flooded condition. Accordingly, from the evidence presented, the jury could have reasonably found that the defendant had actually driven to Wal-Mart while intoxicated.
Additionally, the State argues that based upon the evidence presented in this case, a rational juror could have found that the defendant was in physical control of the vehicle within the meaning of section 55-10-401(a). We agree. First, when the defendant was apprehended by Deputy Owen, he was in reasonably close proximity to his motorcycle (one hundred yards) having just removed the sparkplug in the parking lot. Though the motor was not running nor was the motorcycle moving, it has long been the law in this state that a driving under the influence conviction based upon physical control does not hinge on whether the vehicle's engine is running or whether the vehicle is in motion. See Hester v. State, 270 S.W.2d 321, 322 (Tenn. 1954) (motor running not required); State v. Ford, 725 S.W.2d 689, 690-91 (Tenn. Crim. App. 1986) (vehicle in motion not required).
In addition to the defendant being in close proximity to the vehicle, the key was in the ignition. Furthermore, the fourth Lawrence factor concerning the "defendant's ability, but for the intoxication, to direct the use or non-use of the vehicle" weighs heavily against the defendant based on the fact that he removed the sparkplug just prior to being accosted by Deputy Owen, at a point in time when the evidence reveals he was intoxicated. When we weighed this factor in Lawrence, we were mindful that the defendant "had the present physical ability to direct the vehicle's operation and movement." Lawrence, 849 S.W.2d at 765. In other words, the " efendant could have at any time started the engine and driven away." Id. Likewise in this case, the fact that the defendant had the present abil
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