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State v. Haverluk

10/3/2000

actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs, or other substances. See State v. Ulmer, 1999 ND 245, 7, 603 N.W.2d 865 (identifying similar elements for driving under the influence, citing State v. Salhus, 220 N.W.2d 852, 856 (N.D. 1974)).


[ ] We have frequently upheld APC convictions even when the vehicles were inoperable or the operator had no intent to drive. City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95 (intent to drive is not an element of APC); Salvaggio v. North Dakota Dep't of Transp., 477 N.W.2d 195 (N.D. 1991) (APC is appropriate when a person is arrested outside of vehicle while attempting to free a stuck vehicle); City of Fargo v. Komulainen, 466 N.W.2d 610 (N.D. 1991) (a defendant who was asleep in vehicle with keys in ignition may be convicted of APC despite allegation the car was inoperable); City of Fargo v. Theusch, 462 N.W.2d 162 (N.D. 1990) (a person may be guilty of APC even though the person is asleep in the car with the vehicle keys in his coat pocket); State v. Ghylin, 250 N.W.2d 252 (N.D. 1977) (evidence was sufficient to support APC conviction of defendant who was stuck in a ditch); State v. Schuler, 243 N.W.2d 367 (N.D. 1976) (evidence sufficient to support APC conviction when defendant was in a "high centered" automobile).


[ ] "The key factor in determining actual physical control is whether the defendant is able to manipulate the vehicle's controls." Novotny, 1997 ND 73, 7, 562 N.W.2d 95. The defendant's ability to manipulate the vehicle controls is a question of fact for the jury. Id. at 9, 11. The presence of the vehicle ignition key is not essential to the offense, and presence of the vehicle ignition key is not needed for probable cause. Cf. State v. Larson, 479 N.W.2d 472 (N.D. 1992) (upholding the DUI conviction of a person steering and braking an inoperable bus while the person had the bus keys in his pocket).


[ ] "Actual physical control of a vehicle does not solely depend on the location of the ignition key. The location of the key is one factor among others to consider." Theusch, 462 N.W.2d at 163 (citation omitted). Because the location of the vehicle keys is only one factor, the vehicle keys are "not necessary to support probable cause to arrest." Wanzek, 1999 ND 163, 17, 598 N.W.2d 811 (citing Overby, 1999 ND 47, 8, 590 N.W.2d 703).


2.


[ ] Here, a careful examination of the facts establishes that the officers had probable cause to arrest Haverluk prior to the search of the vehicle. The officers responded to a complaint of an unruly customer and found Haverluk seated in his vehicle. Haverluk's unusual behavior, his slurred speech and bloodshot eyes, the odor of alcoholic beverages emanating from Haverluk and his vehicle, and Haverluk's use of his vehicle to steady himself were sufficient to establish probable cause to arrest for APC. Therefore, the officer's search of Haverluk's car was valid as a search incident to arrest, and the vehicle key was not essential for the probable cause to arrest.


III.


[ ] The search in this instance was also valid as an officer-safety measure. The United States Supreme Court has held a law enforcement officer may order a person to exit a vehicle when the person has been lawfully detained, even in situations not amounting to arrest. Pennsylvania v. Mimms, 434 U.S. 106, 108-11 (1977). This Court has embraced and extended the Mimms rationale. State v. Gilberts, 497 N.W.2d 93 (N.D. 1993); see also State v. Mertz, 362 N.W.2d 410, 413 (N.D. 1985) (extending Mimms to allow a law enforcemen

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