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Whitehead v. State12/1/2000
was parked in a parking lot; that he was not driving down a highway; that he was not steering or braking a car that was being propelled by another vehicle; that he did not have the engine running; that in the prior 10 to 15 minutes he had not driven the truck; and that the keys were not even in the ignition, but were recovered from under the seat. Furthermore, this case presents a situation much less difficult to determine than Cagle. On the basis of the facts before this Court at this time, it appears that, as in Cagle, Whitehead may not have been in possession of the keys to his truck at the time he was questioned by the police officer. The materials before us indicate that, unlike the vehicle in Cagle, Whitehead's truck was not found at the scene of an accident, such as a crash into a utility pole; that Whitehead was not involved in a wreck with other automobiles or people; and that Whitehead was sitting in his truck, which was legally parked in a designated parking space. Merely on the basis of the location of Whitehead and his vehicle, one could not determine if he had even driven the truck while under the influence of alcohol. The police did not feel the hood of the truck for warmth, which might have evidenced that the truck had been recently driven.
Given the information now before this Court on this petition for the writ of certiorari, I am not comfortable in summarily denying review and leaving in place a holding that the State presented sufficient evidence to support Whitehead's conviction. Whitehead's petition raises valid questions as to the sufficiency of the evidence presented by the State. I would grant the petition to examine the record and determine whether the facts show that Whitehead was in "actual physical control," as this Court has defined that term, of the truck when he was questioned by police and subjected to the field sobriety test.
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