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State v. Hutchings11/28/2003
Defendant challenges his conviction for driving under the influence, in violation of Utah Code Annotated section 41-6-44 (Supp .2001). We affirm.
First, Defendant argues that because he was not in "actual physical control" of the vehicle, the trial court improperly denied Defendant's motion to dismiss the charges that were pending against him. "The denial of a motion to dismiss for failure to establish a prima facie case is a question of law [this court] review[s] for correctness." State v. Spainhower, 1999 UT App 280, 4, 988 P .2d 452. "Evidence is sufficient, and the denial of a motion to dismiss proper, if 'the evidence and all inferences that can be reasonably drawn from it [establish that] some evidence exists from which a reasonable jury could find that ... elements of the crime had been proven beyond a reasonable doubt.' " Id. at 5 (first alteration in original) (citation omitted).
In relevant part, section 41-6-44(2)(a) states that
[a] person may not operate or be in actual physical control of a vehicle within this state if the person:
(i) has sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control shows that the person has a blood or breath alcohol concentration of .08 grams or greater; or
(ii) is under the influence of alcohol ... to a degree that renders the person incapable of safely operating a vehicle.
Utah Code Ann. § 41-6-44(2)(a)(i)(ii) (Supp.2001) (emphasis added). "This court indicated that whether a person was in actual physical control of a vehicle required consideration of the totality of the circumstances." State v. Barnhart, 850 P.2d 473, 477 (Utah Ct.App.1993).
Relevant factors for making this determination include, but are not limited to the following: (1) whether defendant was asleep or awake when discovered; (2) the position of the automobile; (3) whether the automobile's motor was running; (4) whether defendant was positioned in the driver's seat of the vehicle; (5) whether defendant was the vehicle's sole occupant; (6) whether defendant had possession of the ignition key; (7) defendant's apparent ability to start and move the vehicle; (8) how the car got to where it was found; and (9) whether defendant drove it there.
Richfield City v. Walker, 790 P.2d 87, 93 (Utah Ct.App.1990) (Walker factors).
Defendant argues that because his vehicle was rendered inoperable, Defendant could not take "actual physical control" of his vehicle. Utah Code Ann. § 41-6-44(2)(a). Defendant's prospective view of actual physical control is misplaced and he ignores all but the seventh Walker factor. [FN1] "To focus exclusively upon the fact that the [vehicle was immobilized] and to ignore other relevant factors, as [D]efendant would have us do, is illogical." Walker, 790 P.2d at 93.
FN1. "[S]ome of the more persuasive indicia of actual physical
control are how the car got to where it was found and whether the defendant drove it there." Richfield City v. Walker, 790 P.2d 87, 92 (Utah Ct.App.1990).
"The focus should not be narrowly upon 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. Where, as here, 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 actual physical control. To hold otherwise could conceivably allow an intoxicated driver whose vehicle was rendered inoperable in a collision to escape prosecution."
*2 Lopez v. Schwendiman, 720 P.2d 778, 781 (Utah 1986) (per curiam) (quoting State v. S
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