When is Driving a Car Not Driving a Car? Actual Physical Control
What does it mean to "Drive" a Car? What is Actual physical control?
Maryland DUI Law
Transportation Article 11-114
What it means: The following question comes up in certain cases and is critical to understand. A Maryland driver does not need to be "driving" a car in order to be arrested and charged with an alcohol related offense! If a person is sitting on the side of the road, parked, while drunk or under the influence, it is likely the person will be charged with the DUI if found by the police. If a person is sleeping on the side of the road or in a parking lot, that person can be and usually is charged with the crime of DUI under Maryland Transportation section 21-902. It is important to know that driving in Maryland is also defined as having "actual physical control" of one's car. Thus, if you are sitting in the driver seat of your car, a fact finder might be of the opinion that you are indeed in actual physical control.
There is various authority for this proposition, but it all starts with Transportation Article 11-114 which says "drive" means to drive, operate, move, or be in actual physical control of a vehicle, including the exercise of control over or the steering of a vehicle being towed by a motor vehicle. Therefore if one moves a car from position A to position B, one could be found guilty. But what if one simply starts there car for heat on a cold night, or listens to the radio? Answer: Guilty! Not automatically of course but the prima facie or initial case can be made by the State that the driver was in "actual physical control" of the vehicle and therefore can be found guilty. By the way, this section applies to vehicles, motorized or not which means golf carts, horses, boats, bicycles and the like. Yes, you can get a DUI on a horse because if falls under the expansive definition of vehicle found in Maryland Transportation Article 11-176 which says a vehicle is any device, in, on, or by which any individual or property is or might be transported or towed on a highway. Vehicle includes low speed vehicle.
The author has had several cases where the Defendant was not actually operating a car at the time of the stop. Many such cases are found not guilty, some where found guilty. Once a Defendant alleged that he walked outside a bar to get something from his car, the police found him in his car and this was enough for the State to charge the crime him with DUI.
In order to fully evaluate whether a person is in actual physical control of their vehicle when the police arrive, Maryland's highest Court has given direction in the case of Atkinson v. State, 627 A.2d 1019. In Atkinson the Court held that the following six factors should be reviewed to determine if a person is in actual physical control of a vehicle:
1. whether or not vehicle's engine is running, or ignition is on;
2. where and in what position the person is found in vehicle;
3. whether the person is awake;
4. where ignition key is located;
5. whether headlights are on; and
6. whether vehicle is located in roadway or is legally parked
None of these factors are weighted more than another factor. They should all be looked at in any given case and reviewed with an eye toward the totality of the circumstances as to what was happening at the time of apprehension. If all or the majority of factors can be answered in the negative, this moves the Defendant closer to a not guilty.
It is of course important to bear the foregoing factors in mind as Defendants often time can't understand how they could possibly be charged or convicted for the offense of DUI when they were not driving the car at the time of apprehension.
If you would like a closer reading of the Atkinson case, the click here.
Another relevant case for review on the issue of actual physical control is a 2002 case from the Maryland Court of Appeals captioned Motor Vehicle Association v. Atterbeary. This is a case which revisited the issue of control of the vehicle along with the Defendant's right to counsel. The driver was found sleeping in his car by the police and therefore one of the initial issues was whether he was in control of his automobile at the time of apprehension.
The second issue in this case, and equally important was the Defendant's right to counsel prior to giving a breath sample. The Defendant had asked for the advice of counsel on several occasions but the police failed to allow such a communication. The Defendant ultimately did not give a breath sample to the police, although he never refused to do so. The Court held that the Defendant was in fact entitled to the advice of counsel when he had asked for same. It is important for the reader to understand that the police will not voluntarily tell a Defendant he is entitled to the advise of counsel, but once requested, the police cannot deprive the Defendant the opportunity to contact a lawyer and obtain advice as long as the Defendant's request is not engineered to move the test past the two hour time frame allowed for the taking of the test.
If you would like a closer reading of the Atterbeary case, click here.
Court of Appeals of Maryland.
Boyce Cornelius ATKINSON
STATE of Maryland.
No. 148, Sept. Term, 1992.
July 21, 1993.
Transportation Article, § 21- 902 provides that a person "may not drive or attempt to drive" a vehicle while intoxicated, while under the influence of alcohol, while under the influence of a drug or a combination of alcohol and a drug, or while under the influence of a controlled dangerous substance. The term "drive" has several meanings, as provided for in § 11-114 of the Transportation Article: " 'Drive' means to drive, operate, move, or be in actual physical control of a vehicle...." The issue in the instant case is whether the appellant, who was sitting intoxicated and asleep in the driver's seat of his vehicle, lawfully parked on the shoulder of the road, with the keys in the ignition but the engine off, was properly found to be in "actual physical control" of his vehicle and thereby convicted of driving while under the influence of alcohol. Because we believe he was not in "actual physical control" of his vehicle, as contemplated by the statute, we reverse his conviction.
In its entirety, § 21-902 provides:
"(a) Driving while intoxicated.--A person may not drive or attempt to drive any vehicle while intoxicated.
(b) Driving while under the influence of alcohol.--A person may not drive or attempt to drive any vehicle while under the influence of alcohol.
(c) Driving while under influence of drugs or drugs and alcohol.--(1) A person may not drive or attempt to drive any vehicle while he is so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that he cannot drive a vehicle safely.
(2) It is not a defense to any charge of violating this subsection that the person charged is or was entitled under the laws of this State to use the drug, combination of drugs, or combination of one or more drugs and alcohol, unless the person was unaware that the drug or combination would make him incapable of safely driving a vehicle.
(d) Driving while under influence of controlled dangerous substance.--A person may not drive or attempt to drive any vehicle while he is under the influence of any controlled dangerous substance, as that term is defined in Article 27, § 279 of the Code, if the person is not entitled to use the controlled dangerous substance under the laws of this State."
The appellant, Boyce Cornelius Atkinson, was arrested on March 7, 1992 and charged with common law battery and driving while intoxicated in violation of § 21-902 of the Transportation Article. [FN2] The case was tried in the Circuit Court for Harford County. Atkinson pled not guilty and consented to trial by an agreed statement of facts based on the arresting officer's police report. [FN3] In exchange for Atkinson's agreement to proceed on a statement of facts, the State agreed to nolle prosequi the battery charge and the § 21-902(a) charge of driving while intoxicated and proceed only with the lesser § 21-902(b) charge of driving under the influence of alcohol.
FN2. The battery charge arose when Atkinson and the officer both fell while Atkinson was being escorted to the officer's car for transport. This charge ultimately was nol prossed.
FN3. A defendant's agreement to proceed on an agreed statement of facts is essentially a trial by stipulation, at which generally no live witnesses are called. See Barnes v. State, 31 Md.App. 25, 354 A.2d 499 (1976) (Orth, J.) (comparing trial by an agreed statement of facts and evidence offered by way of stipulation); Ingersoll v. State, 65 Md.App. 753, 501 A.2d 1373, cert. denied, 306 Md. 70, 507 A.2d 184 (1986) (Robert M. Bell, J.) (discussing plea of not guilty accompanied by an agreed statement of facts). Although this procedure should not be used when there are significant witness credibility questions, we have approved of it in the past when the parties sought to argue solely legal issues at trial. See, e.g., Covington v. State, 282 Md. 540, 386 A.2d 336 (1978) (trial below was conducted upon a plea of not guilty accompanied by an agreed statement of facts).
The statement of facts read into the record by the prosecutor was as follows:
"Your Honor, if the State were put to its burden of proof, it would produce the testimony of Harford County Sheriff's Deputy Thomas, who would testify that on March 7, 1992 at 7:00 P.M., while he was on routine patrol in the area of Abingdon Road near Route 40 in Harford County, Maryland, he observed a Jeep Wagoneer parked on the righthand shoulder of westbound Route 40.
The deputy approached the vehicle, displaying Florida registration JCG96F, and he observed the occupant to be slumped over in the driver's seat with the keys in the ignition and engine off.
The deputy attempted to get the driver's attention by knocking on the window. This action resulted in no reaction from the driver.
The deputy then opened the driver's door, which was unlocked, and shook the driver in an attempt to wake him. At this time, Deputy Thomas detected a strong odor of alcoholic beverage coming from the vehicle.
Deputy Thomas was successful in awakening the subject and while talking to the subject, noted this person's speech was slurred, eyes bloodshot and glassy. He detected a very strong odor of alcoholic beverage coming from the individual's breath.
The driver produced a Florida driver's license which identified him as Boyce C. Atkinson, whom the deputy would identify as the Defendant seated to the far left of Defense counsel in Court this morning.
Deputy Thomas requested the Defendant to perform some field sobriety tests. The Defendant did not, stating he had a broken toe on his right foot. At that time, he was placed under arrest and placed in the patrol car of the deputy.
The deputy returned to the Jeep. At this time, he went back to the patrol car and while en route to the station, along with Deputy Thomas, the Defendant fell over in the back seat of the patrol car.
At that time, the patrol car was stopped to check on Mr. Atkinson's status. Deputy Thomas observed he wasn't [sic] breathing and he had a regular pulse, but he was unsuccessful in awakening the Defendant. He transported him to Fallston General Hospital in case there was need for medical attention.
Upon arrival at the hospital, the Defendant regained consciousness and was evaluated by the Emergency Room staff. He was read his DR 15 Rights. He refused to submit to any type of tests. He was then transported back to the Harford County Sheriff's Department and issued the appropriate traffic citations.
All events occurred in Harford County, Your Honor. That would be the Statement of Facts."
Although Atkinson agreed to this statement of facts, he argued that, as a matter of law, the evidence was insufficient to convict him. He asserted that the facts did not support a finding that he had driven under the influence of alcohol in violation of § 21-902(b) because he did not "drive, operate, [or] move," his vehicle, nor was he in "actual physical control" of it. See § 11-114. After hearing arguments from both sides, the trial judge found that "the evidence [was] sufficient to conclude he was in actual physical control of the vehicle" while under the influence, and entered a finding of guilty under § 21-902(b) for driving under the influence of alcohol. He sentenced Atkinson to sixty days imprisonment, with all but fifteen days suspended, and fined him $500, with all but $250 suspended. The judge placed Atkinson on three years supervised probation with the condition that he consume no alcohol. Atkinson noted a timely appeal to the Court of Special Appeals. Before the Court of Special Appeals could consider the case, however, we issued a writ of certiorari on our own motion 329 Md. 337, 619 A.2d 547.
The test for sufficiency of the evidence to sustain a criminal conviction on appeal is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980). In this case, the essential element in doubt is whether Atkinson was in "actual physical control" of his vehicle while under the influence of alcohol, in violation of the § 21-902(b) prohibition against driving while under the influence of alcohol.
"Actual physical control" of a vehicle is one of four definitions included within the § 21-902(b) term "drive." See § 11-114. The other three definitions are "to drive, operate, [or] move" a vehicle. The legislature's definition of "drive" as meaning, among other things, "to drive," unquestionably engenders some confusion. That seemingly circular definition is obviously meant to connote what we typically think of as driving, while the other § 11-114 definitions encompass other, less obvious, activities. [FN4] In any event, "drive" (as a definition), "operate" and "move" are not at issue here, for each of these terms clearly connotes either some motion of the vehicle or some physical movement or manipulation of the vehicle's controls. To "move" a vehicle plainly requires that the vehicle be placed in motion. "Drive" (as a definition) and "operate" have previously been addressed by this Court as follows:
FN4. Another circular aspect of the statutory definition of "drive" is that Transportation Article § 11-114 defines "drive" as "to drive, operate, move, or be in actual physical control ..." (emphasis added), yet § 11-141 defines "operate" as "to drive, as defined in this subtitle."
" '[t]he term 'driving' is generally used to mean, in this connection, steering and controlling a vehicle while in motion; the term 'operating,' on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.' "
No motion of the vehicle or movement or manipulation by the defendant is alleged in the instant case, and so the result we reach necessarily turns on the meaning of the phrase "actual physical control." Although the term "actual physical control" also was present in the prior version of the statute at issue in Thomas, the Court there never addressed it because the State had failed to specifically charge Thomas with being in "actual physical control" of his vehicle. The statute at issue in Thomas provided that
"[i]t shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol." (Emphasis added).
Md.Code (1957, 1970 Repl.Vol., 1974 Cum.Supp.), Article 66 1/2 , § 11- 902(b). The Court essentially construed the statute as having two distinct prongs, a "driving" prong and an "actual physical control" prong. Thus, while observing that "actual physical control" had its own, independent, meaning, the Court found that this meaning was not at issue in the case because the State had only charged Thomas with "driving," not with being in "actual physical control" of his vehicle. [FN5] Applying only the § 11- 902(b) "driving" prong, the Court concluded that the State had failed to prove that Thomas had actually "driven" the vehicle in which he sat.
FN5. The present statute avoids this potential pitfall in charging by proscribing that a person may not "drive or attempt to drive" under the influence, § 21-902(b), and then defining "drive" in another section, § 11-114. Under this statutory design, a person must only be charged with "driving" under § 21-902(b), this charge encompassing all the specific definitions of "drive" set out in § 11-114.
Thomas's vehicle had been discovered by a police officer standing on the paved shoulder of a lighted ramp with its headlights on. Thomas was either passed out or asleep in the driver's seat, with the windows up and the keys in the ignition, but the motor off. The officer awakened Thomas, asked him to step out of the vehicle, and subsequently arrested him, charging him under § 11- 902(b) with driving under the influence. Analyzing his conviction only under the "driving" prong of § 11-902(b), we reversed, stating:
"All the evidence in this case proves is that Thomas was in a vehicle by the side of a road, possibly intoxicated, at an early hour in the morning. Left to conjecture is whether he drove the vehicle to that location after imbibing alcohol or whether he had parked it there, been picked up by some other individual, and then dropped off at the same spot...."
The only other Maryland appellate opinion addressing the behavioral aspect of the drunk driving statute is the Court of Special Appeals' decision in Gore v. State, 74 Md.App. 143, 536 A.2d 735 (Robert M. Bell, J.), cert. denied, 312 Md. 601, 541 A.2d 964 (1988). In Gore, the current version of § 21-902 was at issue. Like Thomas, Gore did not address the meaning of "actual physical control," although for a different reason. In Gore, a police officer was dispatched to investigate a report of a man asleep behind the wheel of an automobile in a convenience store parking lot. Upon arrival, he found Gore passed out behind the wheel of his car. The engine was off, but the keys were in the ignition in the "on" position, and the alternator/battery light glowed red on the dashboard. The gear selector was in the "drive" position and the car's hood was warm to the officer's touch. The Court of Special Appeals concluded that this circumstantial evidence supported a rational inference by the factfinder that the appellant had actually driven his car while under the influence and upheld Gore's conviction under § 21-902(a). Id. 74 Md.App. at 149, 536 A.2d at 738-39. The court never had to determine whether, at the time he was apprehended, Gore was in "actual physical control" of his car.
Without guiding Maryland precedent, we begin our own analysis of what constitutes "actual physical control" with a brief review of the statute's evolution, noting, as we did in Thomas, that the term "actual physical control" was intended to describe a distinct type of behavior. Before the complete revision of Maryland's motor vehicle laws by Chapter 1007 of the Acts of 1943, § 199 of Article 56 made it unlawful for a person to "operate or drive or attempt to operate or drive a motor vehicle on the public highways of this State when [under the influence]." Pursuant to the 1943 revision, § 153 of Article 66 1/2 provided only that "[i]t shall be unlawful for [any person under the influence] to drive or attempt to drive any vehicle or trackless trolley within the State." The revision deleted the term "operate" and removed the "public highways" restriction. This aspect of the statute remained the same until 1969, when the legislature added the term "actual physical control," so that the statute then made it illegal "to drive or attempt to drive or to be in actual physical control of any vehicle." See Ch. 158 of the 1969 Acts of Maryland, § 206(a) (emphasis added). In 1970, the General Assembly recodified § 206 as § 11-902 of Article 66 1/2. See Ch. 534 of the 1970 Acts of Maryland. In 1977, § 11-902 was recodified as present § 21-902 of the new Transportation Article. See Ch. 14 of the 1977 Acts of Maryland, § 2. The 1977 recodification retained the "actual physical control" language, but moved it from the proscriptive language of § 21-902 to the definition of "drive" found in § 11-114. The current scheme, therefore, proscribes only "driving or attempting to drive," but "drive" is defined in § 11-114 as "drive, operate, move, or be in actual physical control of a vehicle...." One consequence of this organizational change is that it permits a defendant to be charged simply with "driving" while intoxicated or under the influence, this charge encompassing all the behavior described in the § 11- 114 definition of "drive."