State v. Bugger ( 1971 )

TUCKETT, Justice:

The defendant was found guilty of a violation of Section 41-6-44, U.C.A.1953, and from that conviction he has appealed to this court.

During the night of July 28, 1969, the defendant was asleep in his automobile which was parked upon the shoulder of a road known as Tippet’s Lane in Davis County. The automobile was completely off the traveled portion of the highway and the motor was not running. An officer of the Highway Patrol stopped at the scene and discovered the defendant was asleep. With some effort the officer succeeded in awakening the defendant, at which time the officer detected the smell of alcohol and arrested the defendant for being in actual physical control of the vehicle while under the influence of intoxicating liquor.

The complaint charges the defendant with the violation of the statute above referred to which provides as follows:

It is unlawful and punishable as provided in subsection (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.

The defendant is here challenging the validity of the statute on the grounds of vagueness. However, we need not decide the case upon that ground. That part of the statute which states: “be in actual physical control of any vehicle” has been before the courts of other jurisdictions which have statutes with similar wordings. The word “actual” has been defined as meaning “existing in act or reality; * * * in action or existence at the time being; present; * * *.” The word “physical” is defined as “bodily,” and “control” is defined as “to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from actions; to curb.” The term in “actual physical control” in its ordinary sense means “existing” or “present bodily restraint, directing influence, domination or regulation.”¹ It is clear that in the record before us the facts do not bring the case within the wording of the statute. The defendant at the time of his arrest was not controlling the vehicle, nor was he exercising any dominion over it. It is noted that the cases cited by the plaintiff in support of its position in this matter deal with entirely different fact situations, such as the case where the driver was seated in his vehicle on the traveled portion of the highway; or where the motor of the vehicle was operating; or where the driver was attempting to steer the automobile while it was in motion; or where he was attempting to brake the vehicle to arrest its motion.

We are of the opinion that the facts in this case do not make out a violation of the statute and the defendant’s conviction is reversed. We do not consider it necessary to discuss the other claimed errors raised by the defendant.

CALLISTER, C. J., and HENRIOD and CROCKETT, JJ., concur.

1 . State v. Webb, 78 Ariz. 8, 274 P.2d 338; State v. Ruona, 133 Mont. 243, 321 P.2d 615; Ohio v. Wilgus, Com.Pl., 17 Ohio Supp. 34; Parker v. State (Okl.Cr.App.), 424 P.2d 997; 47 A.L.R.2d 582.