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Kingsley v. State11/9/2000
[No. 1704 - November 9, 2000]
The crime defined in AS 28.35.030(a) is usually referred to as "driving while intoxicated". The text of this statute speaks of a person who "operates or drives a motor vehicle". Nevertheless, an intoxicated person can commit this crime without "driving" or "operating" a car in the usual sense. The statute is violated whenever an intoxicated person is in actual physical control of a motor vehicle.
Greg E. Kingsley drove his car into a snow berm, where it remained stuck despite his efforts to extricate it. Kingsley turned the engine off, but he continued to sit in the driver's seat. Kingsley testified that, while he sat there, he consumed a bottle of whiskey and became intoxicated. Based on this evidence, Kingsley was convicted of driving while intoxicated.
Kingsley concedes that he was in physical control of his car while he was intoxicated. Nevertheless, he contends that there are two reasons why he could not lawfully be convicted of driving while intoxicated.
Was there sufficient evidence to support the verdict?
The first reason for reversing his conviction, Kingsley argues, is that the State failed to prove that he was operating a motor vehicle. Kingsley notes that the engine of his car was not running and the State presented no evidence that Kingsley attempted to start the car after he became intoxicated.
But, as explained above, the State did not need to prove that Kingsley operated the vehicle while intoxicated. The crime of "driving while intoxicated" would be established if the State proved that Kingsley exercised actual physical control over the vehicle while he was intoxicated.
As Kingsley acknowledges in his brief to this court, a person who engages the engine of a vehicle and allows it to run is not merely exercising physical control over the vehicle but is also "operating" it. Thus, if the engine of Kingsley's vehicle had been running when the police arrived, the State might have proved that Kingsley was operating the vehicle while intoxicated. But the State had to prove only that Kingsley was in actual physical control of the vehicle while intoxicated.
The supreme court held in Department of Public Safety v. Conley that a person can exercise "physical control" over a motor vehicle (and thus be convicted of driving while intoxicated) even though the vehicle's engine is not running. In Conley, the court ruled that an intoxicated person committed DWI when she got behind the wheel, announced an intention to drive, and tried to insert her key into the ignition. This court reached a similar result in Mezak v. State , where we held that the defendant was properly convicted of operating a water craft while intoxicated when the evidence showed that he actively (but unsuccessfully) tried to start the boat's engine.
It is true that Conley and Mezak involved defendants who did something to try to put their vehicles in motion. But we do not believe that such actions are necessary to prove that a defendant is in "actual physical control" of a vehicle. A person's attempt to operate a vehicle may furnish convincing proof that the person is in actual physical control of the vehicle, but a person may exercise actual physical control over a vehicle without making active attempts to operate it.
In this case, Kingsley was the sole occupant of his vehicle. He was sitting behind the steering wheel, and he had the keys to the vehicle in his pocket. Under these facts, Kingsley was in "actual physical control" of the vehicle even though the engine was not running and even though Kingsley made no active attempt to start the engine.
Was
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