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Canaan v. Commonwealth3/16/2004
to evidence of actual prior physical control of a vehicle thereby, we strongly disagree.
As clearly stated in Banner, the relevant inquiry in determining whether an intoxicated, sleeping licensee exhibited actual physical control over his vehicle while intoxicated is an examination of the totality of the circumstances under which that driver was found - including, specifically, the location of the vehicle and whether the engine was running - and a determination of whether there was evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police. Banner, 558 Pa. at 447-448, 737 A.2d at 1207-1208 (citations omitted). In the instant matter, DOT and Officer Demosky concede that there exists no evidence whatsoever that Canaan exhibited such actual physical control, while intoxicated, over his vehicle prior to the arrival of the officer, and that Officer Demosky witnessed no such control. Further, it is without dispute that the engine of Canaan's vehicle was not running at any time relevant to the instant matter, and that no evidence exists from which to infer that the engine was recently running. Finally, we note that the location of Canaan's vehicle - legally parked in a private residence's driveway - provides no basis from which to infer such control under the circumstances of this case. DOT's assertion that Canaan could have potentially exhibited such control at sometime in the future, but for Officer Demosky's awakening and subsequent arrest of Canaan, are insufficient under Banner and under the instant facts.
As such, we agree with the Trial Court that no objective evidence exists, under the specific facts of this matter, establishing that the arresting officer had reasonable grounds to believe that Canaan was in actual physical control of his vehicle while intoxicated. As in Banner, we conclude that the facts of this case do not fall on the side of the line where the circumstances indicate that an individual was driving his vehicle while under the influence of intoxicants, but rather fall on the side of that line indicating merely that the individual was physically present in a motor vehicle after becoming intoxicated.
Accordingly, we affirm.
JAMES R. KELLEY, Senior Judge
ORDER
AND NOW, this 16th day of March, 2004, the order of the Court of Common Pleas of Westmoreland County, dated May 28, 2003, at No. 8008 of 2003, is affirmed.
JAMES R. KELLEY, Senior Judge
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