State v. Woolf

WALTERS, Chief Judge.

Kenneth Woolf appeals from the district court’s order affirming a magistrate’s judgment of conviction for the misdemean- or offense of driving a vehicle while under the influence of alcohol. I.C. § 18-8004. The sole issue on appeal is whether the magistrate erred by finding that Woolf was in “actual physical control” of his car when he was arrested. We affirm.

At 12:30 a.m. on December 19, 1987, Idaho State Police Officer Earl Farmer observed a vehicle parked on the shoulder of Interstate 15 near Blackfoot, Idaho. Officer Farmer noticed that the brake lights were on and the engine was running, so he stopped to investigate. As he walked to the side of the car he noticed that a person, later determined to be Woolf, was inside. Officer Farmer testified that Woolf, who appeared to be asleep or passed out, had the lower half of his body on the driver’s side of the front seat, with his upper half resting across the passenger side. His right foot was on the brake and his other foot was on the floor. The officer knocked on the window to awaken Woolf. Once awake, Officer Farmer asked him if he had been drinking.¹ Woolf answered that he had. Officer Farmer then arrested Woolf for operating a motor vehicle while under the influence of alcohol in violation of I.C. § 18-8004.

Woolf moved to dismiss the complaint on the grounds that he was not in “actual physical control of a motor vehicle” as that phrase is used I.C. § 18-8004. Following a hearing, the magistrate denied Woolf’s motion. Woolf then entered a conditional guilty plea pursuant to I.C.R. 11. The plea was conditioned on his right to appeal the question of whether the facts in the record support the conclusion that he was in actual physical control of his car when he was arrested. As noted, the district court affirmed the magistrate’s judgment of conviction.

We begin by setting forth our standard of review. On appeal from a decision of the district court rendered in its appellate capacity, we consider the record before the magistrate independently of, but with due regard for, the district court’s determination. State v. Allison, 112 Idaho 572, 733 P.2d 793 (Ct.App.1987). We defer to the trial court’s findings of fact unless they are clearly erroneous. State v. Kysar, 114 Idaho 457, 757 P.2d 720 (Ct.App.1988). However, we exercise free review as to questions of law. Standards of Appellate Review in State and Federal Courts IDAHO APPELLATE HANDBOOK § 3.21 (Idaho Law Foundation, Inc., 2d ed.1989).

Woolf was charged with being in control of a motor vehicle while under the influence of alcohol or drugs in violation of I.C. § 18-8004. Section 18-8004(l)(a) provides that it is unlawful for a person who is under the influence of alcohol or drugs “to drive or be in actual physical control of a motor vehicle within this state, whether upon a highway, street or bridge, or upon public or private property open to the public.” “Actual physical control” is defined as “being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving.” I.C. § 18-8004(6). Here, the parties agree that the engine of Woolf’s car was running when Officer Farmer approached the vehicle. As a result, our focus is upon the correctness of the magistrate’s ruling that Woolf was “in actual physical control” of his car, that is, in the “driver’s position” when Officer Farmer found him.

Idaho’s appellate courts have considered the legislative definition of “actual physical control” in three different opinions. In Matter of Clayton, 113 Idaho 817, 748 P.2d 401 (1988), our Supreme Court determined that the defendant was in the “driver’s position” in his vehicle as the term is used in I.C. § 18-8002(7) (the implied consent statute), which contains the same definition of actual physical control as I.C. § 18-8004(6). The defendant in Clayton had been found passed out while sitting in the driver’s seat. He was slumped over the steering wheel, the vehicle’s engine was running and its lights were on.

In State v. Cheney, 116 Idaho 917, 782 P.2d 40 (Ct.App.1989), this Court reviewed a conviction under I.C. § 18-8004(l)(a) and discussed the phrase “actual physical control.” Cheney was found asleep while sitting upright in the driver’s seat of his vehicle. His head was resting on his chest. The lights of automobile were on and the motor was running. Cheney argued that the vehicle was inoperable at the time of his arrest due to a loss of transmission fluid. This Court found that the evidence did not support Cheney’s contention and therefore did not address the “inoperability” issue. However, the Court did find that the evidence presented at trial supported the conclusion that Cheney was in the driver’s position when he was arrested, therefore, he was in actual physical control of the vehicle.

In Matter of Vogt, 117 Idaho 545, 789 P.2d 1136 (1990), our Supreme Court again reviewed the definition of “actual physical control” found in I.C. § 18-8002(7). In that case, Vogt had been a passenger in a vehicle driven by another person. Both had been drinking. Because the driver did not know where Vogt lived, he parked his Studebaker truck in a store parking lot and walked home, leaving Vogt and another friend asleep in the front seat of the truck with the motor running and the heater on. When found and awakened by a deputy sheriff, Vogt refused to take a sobriety test because he claimed he was not driving the truck. The deputy arrested Vogt.

The position of Vogt’s body in the front seat was disputed during the evidentiary hearing to determine whether Vogt’s driving privileges should be suspended pursuant to I.C. § 18-8002. Ultimately, the magistrate ordered that Vogt’s license should be returned to him. The district court affirmed and the state appealed again. The Supreme Court remanded the case to the magistrate because the magistrate had not made “any finding of fact as to the position of Vogt’s body or whether [he] was actually in the driver’s position.” 117 Idaho at 547, 789 P.2d at 1138.

Vogt is significant by indicating that it is within the province of the trial court to make the initial factual determination of whether a person is in the driver’s position and is therefore in actual physical control of the vehicle. In the instant case, the magistrate found that Woolf was in actual physical control of his car when he was arrested. The facts in the record support the magistrate’s finding. Accordingly, we conclude that the magistrate’s finding was not clearly erroneous. Therefore, we will uphold that finding.

Woolf argues that his intent not to drive should be used as a guideline in determining whether he was exercising actual physical control over his vehicle. He argues that he made a conscious effort to stop driving when he pulled his car over to the side of the road, turned out its lights, kept the motor running to provide heat on a cold December night, and deliberately laid over in the front seat and went to sleep. Woolf contends that these circumstances indicate that he did not intend to drive or exert control over his vehicle. Woolf cites Clayton to support his position, stating that the driver in that case had every intention of driving, but was prevented from doing so only because he had passed out.

We are not persuaded that Woolf’s subjective intent with regard to driving his vehicle is controlling. Our Supreme Court addressed such an issue in Vogt and held that

the State is not required to prove that a person had any intent to drive in the context of a driver’s license suspension hearing under I.C. § 18-8002. The rule does not inquire whether the person is actually posing a danger to the public by driving while intoxicated. Rather, the statute is a prophylactic rule which is intended to discourage intoxicated persons from entering motor vehicles except as passengers____ Thus we hold that the only inquiry in a driver’s license suspension hearing is whether the person is in the ‘driver’s position’ of a vehicle with the motor running or with the vehicle moving.

Vogt, 117 Idaho at 546, 789 P.2d at 1137. Arguably, the Supreme Court’s holding in Vogt should be limited only to license suspension proceedings because of the nature of that case and the language used by the Court. Such a position, however, would not be logical with respect to prosecutions under I.C. § 18-8004(6) in light of the identical definitions of “actual physical control” contained in I.C. § 18-8002(7) and I.C. § 18-8004(6). Moreover, our Supreme Court in Vogt cited decisions from five neighboring jurisdictions which had held that defendants in various stages of incapacity were in “actual physical control” of their vehicles under the respective state’s statutes. A close reading of those cases, cited at page 545 of the Idaho Reports and 789 P.2d at 1138, discloses that each involved a prosecution for driving while under the influence, as distinguished from license suspension proceedings. Consequently, applying the Court's observation in Vogt to the instant case, we hold that Woolf’s intent whether to drive his vehicle is immaterial.

Finally, Woolf argues that a finding that he was in actual physical control of his car when he was arrested would promote bad public policy because it would discourage drivers from pulling off the highway and sleeping until they are sober enough to drive. We agree with Woolf’s premise that any statute which discourages socially responsible action, such as pulling one’s vehicle off the road when one feels drowsy or unable to proceed, is counterproductive. As Justice Bistline stated in Clayton, “Drivers should not be discouraged from pulling over and sleeping it off when they recognize that they are too intoxicated, or somewhat intoxicated and drowsy, to remain in control.” Clayton, 113 Idaho at 820, 748 P.2d at 404 (Bistline, J., specially concurring).

However, we disagree with Woolf’s conclusion that a finding that he was in actual physical control of his vehicle would promote bad policy. The legislature of this state and others across the nation have made it clear, through their drunk-driving laws, that any action posing a danger to public safety and welfare will not be tolerated. Thus, though Woolf did pull off the road, turn out his lights and go to sleep, there remained a chance of injury to the innocent public. Woolf could have awakened, still intoxicated, and driven on. His foot could have slipped from the brake, or his movements within the car could have released the parking brake and sent him careening down the road, with Woolf still unconscious inside. As noted in Clayton, “Any time an intoxicated person assumes [the driver’s] position, the public safety and welfare may be threatened____” 113 Idaho at 819, 748 P.2d at 403. We are bound by the Supreme Court’s expression of policy in Clayton.

Accordingly, we affirm Woolf’s judgment of conviction.

SWANSTROM, J., concurs.

1 . The appellant has not raised any issue in this appeal concerning probable cause for the officer to question him after he awakened.