We’re commonly asked how it can be that a person may be convicted of a DWI crime for merely sitting or sleeping in their parked vehicle. It seems counter-intuitive that a person commits a crime by leaving the house and passing out in the car. Yet this is precisely the conduct that is, and has been, prohibited by Minnesota law for decades. In this blog post, we attempt to explain what it means in Minnesota to commit a DWI crime under what is called “physical control” of a motor vehicle. You may be surprised at how easily criminal liability attaches to conduct that seems otherwise innocent in nature.
In 2012, in the case of State of Minnesota v. Fleck, the Minnesota Supreme Court reaffirmed the broad encompassment that is the physical control species of the DWI statute, affirming a conviction where the defendant was found asleep in his parked car in an assigned residential parking stall with the driver’s door open, keys in the center console, no devices of the vehicle in operation, and where the evidence showed that the vehicle had not recently been operated. While the ultimate holding of the Court was less than groundbreaking under existing precedent, the opinion served as a reminder of the generous reading given to the statute. Convictions premised on a finding of physical control are necessarily arrived at by an examination of specific facts in attendance in any given DWI case. Yet there is undeniably a proximal and temporal line between what is and what is not physical control.
THE CURRENT STATUTE ON PHYSICAL CONTROL
The provisions of Chapter 169A that set forth the elements and criminalize the driving of a motor vehicle while impaired are contained at Minn. Stat. § 169A.20. Subdivision one of that section provides, in pertinent part, that “[i]t is a crime for any person to drive, operate, or be in physical control of any motor vehicle” while under the influence of alcohol. That provision directs what degree of human volition is necessary to actualize criminal liability. “Drive” and “operate” are straight forward enough, and those terms have been accorded scant construction by the courts. It is the “physical control” extract that has been the impetus for so much judicial interpretation.
As the beginning paragraph suggests above, the courts have wrestled over the proper meaning of the terminology that is the centerpiece of this blog post. Fleck was nothing groundbreaking. Rather, it was a reiteration of precedent that established a wide-reaching definition of what it is to commit a DWI crime.
STATE OF MINNESOTA V. DARYL FLECK
At 11:30 p.m. on June 11, 2007, police responded to a call from a concerned citizen who had witnessed an unconscious man in a vehicle in the parking lot of her apartment complex. The man was in the driver’s seat of the vehicle with the door open. Upon arrival, officers found the man – Daryl Fleck – asleep behind the wheel of his vehicle, which was legally parked in an assigned space at the apartment building where he lived. After being awakened by the officers, Mr. Fleck admitted to drinking 10 to 12 beers, but denied driving the vehicle. He first told the officers that he had come to the car to retrieve something but later expressed that he had come out to sit in the car. Three empty beer cans were found under a blanket on the passenger’s seat. The officers concluded that the vehicle had not recently been driven because the vehicle was “cold to the touch,” the lights were not on, and it did not appear that the vehicle had been running. The officers did, however, notice a set of ignition keys in the vehicle’s center console. The officers also noticed that Mr. Fleck’s eyes were bloodshot and watery, that he had slurred speech, poor balance and a disheveled look. Subsequent testing revealed a blood alcohol concentration of 0.18.
The record indicated that on the night of his arrest, Mr. Fleck informed one of the officers that the vehicle was operable, although there was nothing in the record indicating that the officers independently verified that fact. Shortly before Mr. Fleck’s trial, one of the officers attempted to start the vehicle with the keys found in the center console the night of Mr. Fleck’s arrest. While the key turned in the ignition, the vehicle would not start. At a subsequent trial, a jury found Mr. Fleck guilty of DWI.
Mr. Fleck appealed, arguing that the evidence was insufficient to support his convictions for DWI. The Minnesota Court of Appeals, and subsequently the Supreme Court of Minnesota, affirmed the convictions. The decisions reached by the appellate courts were premised on a line of cases reaching back to 1981, and it was by analogues to those cases that the appellate courts eventually affirmed Mr. Fleck’s convictions.
DECISION AT THE MINNESOTA COURT OF APPEALS
On appeal from the district court, Mr. Fleck asserted that the evidence adduced at trial was insufficient as a matter of law to support his convictions. The issue was articulated by the court of appeals as follows: “Is evidence that a person was found alone, intoxicated, and asleep behind the wheel of his operable motor vehicle parked at his residence with the keys on the center console sufficient to support convictions of driving while impaired by reason of being in physical control of a vehicle within the meaning of Minn. Stat. § 169A.20, subd. 1(1), (5) (2006)?” Ultimately, the court of appeals held in the affirmative.
The court of appeals began its analysis by an iteration of precedent approving that “a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle….” The court maintained that the term “physical control” is “given the broadest possible effect,” and is “meant to cover situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.” The court did recognize that “[m]ere presence in or about the vehicle is not enough for physical control; it is the overall situation that is determinative.”
Mr. Fleck cited to the facts underlying State v. Pazderski as identical to the facts of his case. In Pazderski, the facts were substantially as follows: On May 4, 1983, the defendant drove to two neighborhood taverns and had some drinks. He returned home around midnight, and parked his car on an apron adjacent to a detached garage next to his home that was co-occupied by his girlfriend. Mr. Pazderski exited his car, walked to the back door of the house, and took a couple of steps inside with the intention of going to sleep. As he was a few steps inside the home, he thought it best to avoid a potential argument with his girlfriend, and decided to return to the car to sleep there for the night. He locked the back door to the house, returned to the car, a fell asleep in the front seat.
A few hours later, Mr. Pazderski’s girlfriend awoke and from a window observed her boyfriend’s parked car. However, she could not locate him and out of a concern for his whereabouts, called the police. At approximately 3:00 a.m., an officer arrived and located Mr. Pazderski in the front seat of the vehicle with his head over toward the passenger side. The car was not running, the keys were not in the ignition, and there was no evidence that the car had been driven in recent history. Further, and as found by the court that decided Pazderski, there were no facts in the record that supported any inference other than that Pazderski had been soundly sleeping and had the intention of sleeping the rest of the night in his car. A subsequent breath test revealed an alcohol concentration of .17, and Mr. Pazderski was later convicted for being in physical control of a motor vehicle in violation of the DWI laws. On appeal, the court of appeals reversed the conviction, opining that “[b]eing in the front seat alone, without more, is insufficient to uphold [the] conviction.”
In deciding Fleck, the court of appeals distinguished the facts of Daryl Fleck’s case with those of Pazderski, holding “that the overall situation of Fleck is distinguishable from that of Pazderski” and that the evidence was otherwise sufficient to support the convictions. A scrutiny of the two cases yields substantially similar factual scenarios. The master-stroke against Mr. Fleck appears to have been his possession of the ignition key:
[In Pazderski], the evidence showed only that Pazderski was using his vehicle for a purpose that was entirely inconsistent with driving. There was no evidence that the keys were in Pazderski’s possession or in the vehicle such that he could have immediately driven off. In contrast, the evidence of Fleck’s use of his vehicle was not inconsistent with driving the vehicle, and the keys were readily available to him.
DECISION AT THE MINNESOTA SUPREME COURT
On review, the Minnesota Supreme Court affirmed Mr. Fleck’s convictions. The court relied heavily on the same justifications proffered by the court of appeals, and analogized to cases that have been cited in the preceding paragraphs of this blog post. Additionally, the court sermonized on the purposes underlying the offense of being in physical control while under the influence of alcohol, as “to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to ‘enable the drunken driver to be apprehended before he strikes.’” Indeed, the court cited to an earlier case for the proposition that “[p]hysical control is meant to cover situations in which an intoxicated person ‘is found in a parked vehicle under circumstances in which the [vehicle], without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.’” Really, the holding of the supreme court was that of the court of appeals with a difference only in wording, and including supportive policy rationales inherent to the holding.
THE ORIGINS OF PHYSICAL CONTROL
On October 26, 1978, the Glencoe Police Department received a call that about six miles outside of town, a man was lying underneath his vehicle parked on the shoulder of the county highway. On arriving, officers located the vehicle and found a man asleep in the front driver’s seat and leaning against the steering wheel. Officers thought that the motor to the pickup was running, but were unable to testify with any degree of certainty regarding that fact. The key, however, was in the ignition. The man – identified as David Juncewski – failed a number of field sobriety tests and a preliminary screening test. At the sheriff’s office, he refused to submit to chemical testing for intoxication.
After refusing to submit to testing, Mr. Juncewski was given a notice of revocation of his driver’s license. Mr. Juncewski requested a hearing on the proposed license revocation, was granted the same, and contended that there was insufficient proof that he was in physical control of his pickup. The district court agreed with Mr. Juncewski, holding that there was insufficient evidence on the issue of “physical control”. A two judge majority on the district court appeals panel affirmed on the theory that the preliminary screening test was improperly administered, while one judge dissented on the issue of physical control alone. Review was then sought at the Minnesota Supreme Court
There, the court was confronted with a matter of first impression in its task to discern the legislative intent behind the words “physical control”. The court’s eventual decision was the product of statutory construction, public policy analysis, and the importation of law and policy from other states. Of special significance, the court noted that less than two months before Mr. Juncewski’s arrest, the DWI law was amended to modify the requirement that a driver be in “actual physical control” by removing the term “actual” from the statute. The court viewed that alteration as a move by the “Minnesota Legislature… to cover the broadest possible range of conduct….” “By eliminating one qualifying adjective,” said the court, “the legislature intended that the statute be given the broadest possible effect.”
Remarking that physical control had not then been defined, the court turned to other states for guidance. Citing numerous cases involving non-running, parked vehicles, the court essentially adopted the policy rationale of North Dakota Supreme Court in State v. Ghylin:
[T]he real purpose of the [actual physical control] statute is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers…. [T]he “actual physical control” offense is a preventive measure intended to deter the drunken driver. One who has been drinking intoxicating liquor should not be encouraged to test his driving ability on the highway, even for a short distance, where his life and the lives of others hang in the balance.
To conclude in its own words, the Juncewski court expressed:
Whether a motor must be running before a person may be in actual physical control is essentially a policy issue. Because Minnesota laws designed to prevent driving while intoxicated are to be broadly construed in the public’s favor, we hold that Juncewski exercised the necessary control to have violated [the DWI statute].
Since the holding in Juncewski, a plethora of like cases have come and gone – the outcome in each depending on the specific circumstances in attendance. The common thread observed, and the touchstone of culpability, has been a vehicle’s operability and the facility of a person to put the vehicle into motion at the public’s peril.
WHAT IS NOT PHYSICAL CONTROL
Some things in life are best articulated by way of example. Snyder v. Commissioner of Public Safety serves as a fine example of what is not physical control. The facts of the case are substantially as follows.
On September 2, 2006, Jason Snyder attended a wedding reception, was engaged in an altercation with some other guests, and the police were contacted. When police arrived, Snyder, his wife and two of their friends were walking toward a vehicle parked in a lot adjoining the reception location. Wright County Deputy Sheriff Jeremy Wirkkula approached the group, and as he approached, he observed Mr. Snyder unlock the driver’s side door, open the door, place his right foot inside the passenger compartment, while his left hand was on the driver’s side door holding the keys. The group noticed Deputy Wirkkula approaching, and Mr. Snyder thereupon turned around, stepped out of the vehicle, and began walking toward the deputy’s squad. As Mr. Snyder walked toward the squad, he tossed the keys to his wife. Mr. Snyder was arrested for a DWI offense and his license was revoked under Minnesota’s Implied Consent Law. The district court found that Snyder had been in physical control of the vehicle and upheld the revocation of Mr. Snyder’s driver’s license.
On review, the court of appeals reversed. The court recognized that in certain circumstances, the overall situation has indicated that a defendant was in “physical control” of a vehicle even when located without the passenger compartment. The critical divide, noted the court, is between the person who is merely in a position where they could start the vehicle “without too much difficulty” and the person who “has or is about to take some action that makes the motor vehicle a source of danger to themselves, to others, or to property.”
The holding in Snyder, when compared to other holding discussed above, becomes confusing. In support of its holding in Snyder, the court of appeals made the statement that “no attendant or aggravating circumstances indicate that [Snyder] had or would operate the vehicle while intoxicated, as he was not alone with his vehicle on the side of the road, nor had he entered his vehicle or inserted his key into the ignition.” Moreover, the court emphasized that “[Snyder] handed his keys to a third party before getting into the car, ending the prospects for his driving or taking control of the vehicle.” Yet these findings overlook the very conduct that the broad reading of physical control is supposed to guard against. Very clearly, Mr. Snyder was entering the vehicle as a driver, keys in hand. He was not entering the vehicle as a passenger, and every indicia of evidence indicated he was in physical control as that term was understood by past decisions. It was only because of an interruption by law enforcement that Mr. Snyder did not complete his entry of the vehicle’s compartment, and his “relinquishment” of the keys was only made while en route to a deputy’s squad and after he had nearly entered the vehicle with the keys.
The trouble with the physical control class of DWI cases should be apparent. On the one hand, Daryl Fleck’s stands convicted of a DWI crime, while Jason Snyder (literally) walks away. There was no evidence in either case that adduced any man had in fact driven a vehicle any more than the other. While this is a product of the intensity given the specific facts of individual cases, it underscores much of the trouble with the physical control theory in DWI cases.