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Hamrac v. State11/3/2000
der to start the truck, he had to take a battery from his own truck, put it in Bush's truck, and then rewire the fuel pump under the dashboard. He stated that Bush, not the Red Level police, had given him the keys.
In my opinion, if the facts stated here establish that Hamrac was in "actual physical control" of the truck, then this Court has gone beyond the clear intention the Legislature had when it passed the DUI law. This Court has defined "actual physical control" of a motor vehicle as " 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." Cagle v. City of Gadsden, 495 So. 2d 1144, 1145 (Ala. 1986) (quoting Key v. Town of Kinsey, 424 So. 2d 701, 703 (Ala.Crim.App. 1982)). "Actual physical control" is determined by "a totality-of-the-circumstances test." Cagle, 495 So. 2d at 1145. I accept the Cagle requirements for determining whether someone is in "actual physical control" of a vehicle. Cagle was important in giving the courts of this State the ability to decide that a person was in control of a vehicle without proof that the person was behind the steering wheel when stopped by the police or that the person had the keys to the vehicle. It is certainly possible for a person who has been driving to slide over to the passenger seat or throw the keys out the window when the police arrive. In the Cagle case, the defendant Cagle was found behind the steering wheel of a truck that had struck a power pole, cracking the pole in half. No evidence was produced to indicate whether the defendant had possession of the truck keys. In Cagle, even though this Court disagreed with the reasoning of the Court of Criminal Appeals, it agreed with the decision of that Court, which was that "there was insufficient evidence upon which to base a conviction." 495 So. 2d at 1147.
This Court has found sufficient evidence in cases where the engine of a parked vehicle was still warm or the driver had the keys in his possession when the police discovered him at the wheel of the vehicle. Neither of those circumstances was shown in Hamrac's case. While I certainly have not yet come to a conclusion as to the sufficiency of the evidence in Hamrac's case, I can say that his petition for the writ of certiorari has presented serious questions as to whether the State proved that he was in "actual physical control" of the truck when the officer stopped and tested his sobriety. Therefore, I would grant the petition.
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