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State v. Cross11/14/2000
In the instant case, Cross was found partially within a vehicle, with its headlights on and the engine running. The driver's side door was open. Cross was asleep, with his feet on the ground, his legs outside the vehicle, and his torso lying across the front seat. There was no one else inside the car but there was no evidence as to whether other persons were near the vehicle. While these facts would justify a finding of "actual physical control" of the vehicle under the old definition of "operates" and the case law construing it, they do not establish he was "physically driving or operating a motor vehicle" under the amended version of section 577.001.1.
For the foregoing reasons, I would reverse the trial court's judgment.
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