State v. Love , 182 Ariz. 324 ( 1995 )

OPINION

ZLAKET, Justice.

At approximately 8:30 a.m. on September 19, 1992, an Arizona Department of Public Safety officer found appellant Love’s car stopped, with its engine still running, in the northbound emergency lane of Interstate 17. The vehicle was parked at a slight angle to the roadway, and it first appeared that no one was inside. When the officer approached, however, he found Mr. Love asleep, lying with his head near the passenger door and his legs underneath the steering wheel. The officer eventually awakened appellant after several attempts that included calling to him through the open windows, activating the police car’s siren, and physically shaking him. Appellant sat up and immediately reached for the vehicle’s gearshift. The officer then persuaded him to move over to the car’s passenger side and turn off the ignition.

Detecting an odor of alcohol, the officer administered field sobriety tests. He reported that appellant’s performance was poor. He also noted that his speech was slurred and his eyes were bloodshot. Based on the foregoing, the officer arrested appellant for driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor (DUI). When they arrived at the police station, Mr. Love refused to take a breath test.

After appellant waived his right to a jury trial and agreed to a stipulated set of facts, the trial court found him guilty of DUI. It sentenced him to 3 years probation, the terms of which included a 6 month jail sentence. The court of- appeals affirmed by memorandum decision. We granted review.

A.R.S. § 28-692 provides, in part, that it “is unlawful for any person to drive or be in actual physical control of any vehicle ... [wjhile under the influence of intoxicating liquor” if that person is impaired to the “slightest degree,” or to have “an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle.” Although the legislature did not define “actual physical control,” this court has held that the phrase may, under some circumstances, apply to persons who are not at the time driving or otherwise putting a vehicle in motion. See, e.g., State v. Webb, 78 Ariz. 8, 11, 274 P.2d 338, 340 (1954) (defendant found sleeping inside a truck that was stopped in a traffic lane, with its bright lights on and engine running).

In State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983), the defendant was found asleep and partly hanging out of the driver’s side window of his truck, which was parked in the emergency lane of Interstate 10. Both he and the vehicle smelled of alcohol. Although the key was in the ignition, the truck’s engine was not running. The defendant claimed he was not in actual physical control of his truck when arrested for DUI. This court found that because he had pulled over to the side of the road and turned off the ignition, he “voluntarily ceased to exercise control over the vehicle prior to losing consciousness.” Id. at 358-59, 666 P.2d at 458-59. We also noted that “it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control.” Id.

Relying primarily on Webb and Zavala, the court of appeals here concluded that unless a motorist pulls completely off the travelled portion of the roadway and turns off the ignition, he or she cannot escape a presumption of actual physical control. See also State v. Vermuele, 160 Ariz. 295, 297, 772 P.2d 1148, 1150 (Ct.App.1989); State v. Superior Court, 153 Ariz. 119, 122, 735 P.2d 149, 152 (Ct.App.1987). While it is easy to appreciate how the appellate court reached this result, we believe that such a rigid, mechanistic analysis is neither appropriate nor in keeping with the rest of our criminal jurisprudence. No valid reason has been shown why DUI cases should be accorded unique treatment. We find it preferable, as in other cases, to allow the trier of fact to consider the totality of the circumstances in determining whether defendant was in actual physical control of his vehicle.

Such an approach was recently adopted in Maryland. See Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993). Finding that its legislature did not intend to forbid intoxicated individuals from seeking stationary shelter in their cars, the Maryland court opted for a flexible test by which fact finders could “assess potential danger based upon the circumstances of each case.” Id. at 1025-26; see also Cagle v. City of Gadsden, 495 So.2d 1144, 1145 (Ala.1986); State v. Lawrence, 849 S.W.2d 761, 765 (Tenn.1993). Thus, a determination of actual physical control depends on a weighing of the particular facts presented rather than the application of a boilerplate formula. Factors to be considered in any given case might include: whether the vehicle was running or the ignition was on; where the key was located; where and in what position the driver was found in the vehicle; whether the person was awake or asleep; if the vehicle’s headlights were on; where the vehicle was stopped (in the road or legally parked); whether the driver had voluntarily pulled off the road; time of day and weather conditions; if the heater or air conditioner was on; whether the windows were up or down; and any explanation of the circumstances advanced by the defense. See, e.g., Atkinson, 627 A.2d at 1027. This list is not intended to be all-inclusive. It merely serves to illustrate that in every case the trier of fact should be entitled to examine all available evidence and weigh credibility in determining whether defendant was simply using the vehicle as a stationary shelter or actually posed a threat to the public by the exercise of present or imminent control over it while impaired. Id. at 1028.

The State urges us to perpetuate the policy enunciated in Webb and Zavala requiring drivers, at a minimum, to pull over and shut off their engines in order to demonstrate that they have voluntarily relinquished control of their vehicles. Although we agree that those factors may be important, we do not think they alone should be dispositive. It is unwise to proceed down a path on which we attempt to identify “black letter” criteria for establishing actual physical control as a matter of law in each and every case. Such an effort would invariably fail and is unlikely to serve the interests of justice in any event. A bright line test employing too few factors can easily lead to unfairly pigeonholed results, while the addition of new ones would make it increasingly difficult, if not impossible, to construct a legally sound equation for determining guilt or innocence.

On the other hand, the “totality” approach recognizes that each situation may be different and requires the fact finder to weigh the myriad of circumstances in fairly assessing whether a driver relinquished control and no longer presented a danger to himself or others. It is the method we follow in most other types of cases and is “neither so restrictive ... as to thwart the obvious statutory aim of enabling the drunken driver to be apprehended before he maims or kills himself or someone else, nor ... so expansive as to permit a conviction where clearly not warranted.” Lawrence, 849 S.W.2d at 765.

The dissent suggests that the Zavala “test” may be more effective in removing impaired drivers from our highways and in keeping potential victims out of harm’s way than the analysis we have advanced here. We come to quite the opposite conclusion. The totality approach permits drunk drivers to be prosecuted under a much greater variety of situations—for example, even when the vehicle is off the road with the engine not running. The drunk who turns off the key but remains behind the wheel is just as able to take command of the car and drive away, if so inclined, as the one who leaves the engine on. The former needs only an instant to start the vehicle, hardly a daunting task. Thus, we believe the step closer to driving depicted by the dissent is so small as to be illusory. Furthermore, the suggestion that an impaired motorist, stopped off the roadway, should be able to gain immunity by the simple act of turning off the ignition (perhaps even as the police car approaches) best illustrates the absurdity of an inflexible rule. Under a totality analysis, the motorist will not receive automatic absolution with such a flick of the wrist, but can still be found in “actual physical control” of the vehicle.

That the mechanical application of Zavala can lead to highly questionable results was demonstrated in State ex rel. McDougall v. Superior Court, 173 Ariz. 582, 845 P.2d 508 (Ct.App.1992), a case cited by the dissent. In McDougall, the defendant left a party at which he had been drinking and walked to a private parking lot where his car was located. It was February, and he started the engine so the heater would keep him warm. Defendant then fell asleep behind the wheel, where he was later found. The undisputed evidence was that he had not driven the car and had no intention of doing so. Because the key was on, however, his DUI conviction was reinstated by the court of appeals.¹ Had it been off, he presumably would not have been found guilty. Applying the totality test, the defendant could have been convicted or acquitted under either scenario. The decision would have been left to the finder of fact, which is where we think it properly belongs in these cases.

In closing, it is important for us to note that under A.R.S. § 28-692 a motorist can be convicted for either “driving” or “being in actual physical control” while under the influence of intoxicating substances. Thus, even where a defendant is determined to have relinquished actual physical control, if it can be shown that such person drove while intoxicated to reach the place where he or she was found, the evidence will support a judgment of guilt. See State ex rel. O’Neill v. Brown, 182 Ariz. 525, 527, 898 P.2d 474, 476 (1995). Our decision should not be read to suggest otherwise.

We hold that whether a driver had actual physical control is a question for the fact finder and should be based upon consideration of all the circumstances. We therefore vacate the memorandum decision of the court of appeals, reverse appellant’s conviction, and remand the case for a new trial at which the principles set forth in this opinion shall be applied to determine his guilt or innocence.

FELDMAN, C.J., and MARTONE, J., concur.

1 . Because Justice Martone had been the superior court judge whose decision was overturned by the court of appeals in McDougall, he was compelled to recuse himself when the case came to us on a petition for review. We ultimately were forced to dismiss it because the remaining four justices were equally divided on the issue presented. See 174 Ariz. 343, 849 P.2d 1373 (1993).