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State v. Butler6/24/2003
ity to remove the sparkplug while in an intoxicated state demonstrates that he could direct the motorcycle's operation and movement.
Likewise, we are persuaded that the fifth Lawrence factor -- the extent to which the vehicle is capable of being operated or moved under its own power or otherwise -- weighs in favor of finding that the defendant was in physical control of his motorcycle. In support of his claim that he was not in physical control of his motorcycle when he was arrested, the defendant cites the case of State v. Carter, 889 S.W.2d 231 (Tenn. Crim. App. 1994). In Carter, the Court of Criminal Appeals held that the evidence was insufficient to support the defendant's conviction for driving under the influence because her car was incapable of being operated without substantial mechanical repairs. The defendant was parked at a dentist's office. An officer was sent to the scene to investigate a report of a potentially intoxicated driver. When the officer arrived, the defendant was unsuccessfully attempting to start her car. Ultimately, the defendant was arrested for driving under the influence. Id. at 232.
At trial, an experienced automobile mechanic, James Srock, testified that the defendant's car battery "was dead and that the vehicle could not be jump started." Carter, 889 S.W.2d at 233. Additionally, Mr. Srock testified that "the vehicle would start only if the carburetor were replaced or taken apart and thoroughly cleaned." Id. The Court of Criminal Appeals found the situation to be analogous to the hypothetical scenario we offered in Lawrence suggesting that a conviction would be improper if "an intoxicated person sitting in the driver's seat of an automobile having no tires and mounted on blocks." Id. (quoting Lawrence, 849 S.W.2d at 765).
In evaluating the fifth Lawrence factor, we note that other states with driving under the influence statutes similar to those in Tennessee have applied a "reasonably capable of being rendered operable standard" in cases where defendants have claimed that their vehicles were not operational in an attempt to show that there was no physical control of the vehicle. See, e.g., Kingsley v. State, 11 P.3d 1001, 1004 (Alaska Ct. App. 2000); State v. Smelter, 674 P.2d 690 (Wash. Ct. App. 1984).
In Smelter, the defendant was found intoxicated in his car by a Washington State Patrol officer. At that time, the vehicle was out of gas. After being convicted of being in physical control of a motor vehicle while under the influence of intoxicating liquor, the defendant argued that because his car was out of gas, he could not be in physical control of the vehicle. Smelter, 674 P.2d at 691. The Smelter Court noted that under the reasonably capable of being rendered operable standard, the proper focus was not narrowly on the "mechanical condition of the car when it comes to rest, but upon the status of its occupant and the nature of the authority he or she exerted over the vehicle in arriving at the place from which, by virtue of its inoperability, it can no longer move." Id. at 693. Thus, the Smelter Court held that where "circumstantial evidence permits a legitimate inference that the car was where it was and was performing as it was because of the defendant's choice, it follows that the defendant was in" physical control of the vehicle. Id. (emphasis added).
Upon review, we find the reasoning of the Smelter Court persuasive, and we adopt the reasonably capable of being rendered operable standard in cases where a defendant contests the element of physical control based upon alleged inoperability of the vehicle. This standard will aid the trier of fact in evaluating the fifth Lawrence factor in that it "distinguishes a car
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