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State, ex rel. C.L.7/9/2004
requires an examination of the totality of the circumstances. See, e.g., State v. Vialpando, 2004 UT App 95, 22, 89 P.3d 209. We have further articulated a nonexhaustive set of factors that should be examined in these situations, including:
"(1) whether [the] defendant was asleep or awake when discovered;
(2) the position of the automobile;
(3) whether the automobile's motor was running;
(4) whether [the] defendant was positioned in the driver's seat of the vehicle;
(5) whether [the] defendant was the vehicle's sole occupant;
(6) whether [the] defendant had possession of the ignition key;
(7) [the] defendant's apparent ability to start and move the vehicle;
(8) how the car got to where it was found; and
(9) whether [the] defendant drove it there."
Id. at n. 4 (alterations in original) (quoting State v. Barnhart, 850 P.2d 473, 477 (Utah Ct.App.1993)).
Applying these factors to the instant case, although C.L. was awake and in possession of the keys to the car at the time the police encountered him, he was not inside the vehicle, the engine was cold and not running, and several other people were also in close proximity to the vehicle. Moreover, the record contains no evidence suggesting that C.L. was making any effort to operate the vehicle beyond seeking the assistance of a tow truck to extricate the vehicle from its predicament. At a minimum, I believe that to be found in actual physical control, a defendant must be in a " 'position to manipulate one or more of the controls of the vehicle that cause it to move or affects its movement in some manner or direction.' " State v. Kitchens, 498 N.W.2d 649, 651 (S.D.1993) (citation omitted); see Lopez v. Schwendiman, 720 P.2d 778, 780 (Utah 1986) (per curiam) (" 'Positioning in the driver's seat is an element common to all of the cases that have found actual physical control of a motionless vehicle.' " (quoting State v. Smelter, 674 P.2d 690, 692 (Wash.Ct.App.1984))). C.L. was found outside of the vehicle and away from its control mechanisms. Consequently, I cannot join with the majority in concluding that C.L. was in actual physical control of a vehicle at the time he encountered the police officers.
However, the trial court did find "that the State has met its burden of proof and that [C.L.] was under the influence of alcohol at the time of the accident," (emphasis added), which occurred well before C.L. encountered the police. C.L. does not challenge this finding on appeal. Consequently, he concedes this finding, and we should affirm on this basis. See, e.g., State v. Cruz-Mesa, 2003 UT 32, 18, 76 P.3d 1165 (affirming the defendant's conviction based, in part, upon an unchallenged finding).
*3 Accordingly, I disagree with the majority's conclusion that the trial court properly found C.L. to be in actual physical control of the vehicle. However, because the trial court also found that he was under the influence of alcohol at the time of the accident, I concur in the result.
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