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State v. Winstead11/12/2003
iving while intoxicated. In holding that a rational trier of fact could find that the defendant was in actual physical control of the vehicle, we noted that "if circumstantial evidence were to prove that [the] defendant [ ] started his car before falling asleep, he would have been in actual physical control of it while awake and in the driver's seat." Id.; see also Atkinson v. State, 627 A.2d 1019, 1028 (Md. 1993) ("Indeed, once an individual has started the vehicle, he or she has come as close as possible to actually [operating it] without doing so and will generally be in 'actual physical control' of the vehicle.").
Here, the defendant was also found asleep in the driver's seat of a car in a parking lot with the engine running. Moreover, the defendant testified at trial that he unlocked the door, sat in the driver's seat, pushed the clutch in, moved the gear selector to neutral, started the engine and turned on the heater. Given these facts and the reasonable inferences therefrom, a rational trier of fact could find beyond a reasonable doubt that the defendant was in actual physical control of the car before he fell asleep. See Willard, 139 N.H. at 571.
Affirmed.
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