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Beattie v. State8/17/2005
upreme court clarified that a defendant who was sitting in the driver's seat and trying to put the key in the ignition was in "actual physical control" of the vehicle even though the engine was not running because she was "physically capable of starting the engine and causing the vehicle to move." Furthermore, a finding of "actual physical control" does not require that the person sitting in the driver's seat make an active effort to operate the vehicle.
In Kingsley v. State, we explained that a person's attempt to start a vehicle "may furnish convincing proof that the person is in actual physical control of the vehicle," but such a finding is not required to prove that the defendant was "operating." Thus Kingsley, who was sitting in the driver's seat with his ignition key in his pocket,was in actual, physical control of his vehicle even though it was stuck in a snow bank and he made no effort to start the engine.
In this case, Beattie asked the court to instruct the jury that it could not find that he was "operating" the motor vehicle unless it found that he had "actual, physical possession" of the ignition key. He argues that because the defendant in Conley was trying to put the key in the ignition, and because the defendant in Kingsley had the ignition key in his pocket, "actual, physical possession" of the ignition key is a necessary element of "operating" a motor vehicle. But Beattie offers no rationale for distinguishing a case in which the defendant is sitting in the driver's seat with the keys in his hand or pocket from a case in which the keys are in the ignition or on the floorboard. In each case, the defendant is "physically or bodily able to assert dominion, in the sense of movement" over the motor vehicle. As noted earlier, a running engine, possession of the ignition key, or an active attempt to start the engine are all factors to consider in determining whether a person is in "actual physical control" of a vehicle, but they are not necessary factors. We conclude that Judge Cutler did not err in rejecting Beattie's proposed jury instruction defining "operating" because that instruction misstated the law.
Conclusion Beattie's convictions are AFFIRMED.
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