Whitehead v. State12/1/2000
WRIT DENIED.
Maddox, Houston , Cook, See, and Brown, JJ., concur.
Hooper, C.J., and Johnstone and England, JJ., dissent.
HOOPER, Chief Justice (dissenting).
I respectfully dissent.
Kenneth Vann Whitehead was convicted of driving under the influence of alcohol. The Court of Criminal Appeals on May 19, 2000, affirmed his conviction, by an unpublished memorandum. Whitehead v. State (No. CR-99-0268), ___ So. 2d ___ (Ala. Crim. App. 2000) (table). I would grant Whitehead's petition for certiorari review because I cannot determine, merely on the basis of the briefs presently before this Court, whether Whitehead was in "actual physical control" of the motor vehicle when he was questioned by police and subjected to a field sobriety test that led to his conviction. I think we should grant the petition to allow us an opportunity to examine the record and determine whether the State proved the element of "actual physical control."
The materials before us suggest these facts: Whitehead met a friend at a gasoline station/convenience store. He parked his truck in the parking lot of the store, hid his keys between the seats, got in his friend's vehicle, and rode off with his friend to go out for the evening. Later that night, knowing he was too intoxicated to drive and unable to notify a nephew to come get him, he took a taxi back to his truck. After telephoning his mother to come pick him up, he waited in his truck. A police officer noticed Whitehead sitting in the driver's seat of his truck, which was legally parked in a designated parking place in the store's lot. The officer left to patrol several other parking lots, and when he returned 10 to 15 minutes later he noticed that Whitehead was still sitting in his truck, parked in the same space. The officer called in a "suspicious-vehicle-or-person" report, and another police officer came to his assistance. The two officers approached Whitehead, who was in his truck, and began talking with him. They ordered Whitehead to exit his truck and as he exited it, they noticed a medallion of some kind -- they mistakenly thought it be the truck keys -- near the ignition. Upon exiting the vehicle, Whitehead informed the officers that he could not pass a field sobriety test, and he subsequently failed such a test. The officers recovered the keys from underneath the seat of the truck and determined that the vehicle could move in forward and reverse gears; however, they did not feel the hood of the truck to see if it was warm -- warmth would have suggested the truck had been driven recently. Whitehead was subsequently arrested, and was convicted, for driving under the influence .
The statute upon which Whitehead was convicted, § 32-5A-191, Ala. Code 1975, requires as an element of the offense that the defendant "drive or be in actual physical control of" a vehicle. That statute, however, does not define the term "actual physical control"; the appellate courts of this state have developed the meaning of that phrase. This Court defined it in Cagle v. City of Gadsden, 495 So. 2d 1144, 1145 (Ala. 1986), as the "exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment" (quoting Key v. Town of Kinsey, 424 So. 2d 701, 703 (Ala. Crim. App. 1982). The Court said that "actual physical control" is determined by employing a totality-of-the-circumstances test. The Court determined in Cagle that the defendant Cagle had not been in "actual physical control" of the vehicle in which he was found because, despite the fact that he was found behind the steering wheel of a truck that had struck a power pole and cracked it in hal
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