Boyce Atkinson was charged with driving while intoxicated in Harford County. His attorney at trial agreed to with the State to a not guilty statement of facts, recounting that Mr. Atkinson was found slumped over in the driver’s seat with the keys in the ignition and engine off. Upon being awakened by the officer, Mr. Atkinson emitted a strong, also described as “very strong” odor of an alcoholic beverage. Per the statement of facts, Mr. Atkinson declined the officer’s request to perform a field sobriety test and was thereupon arrested. Mr. Atkinson refused field sobriety tests at the emergency room and was taken back to the station.
Mr. Atkinson was convicted by the trial court upon these facts and was sentenced to 15 days of live time in jail and was fined. His attorney filed an appeal to the Court of Special Appeals; the Court of Appeals intercepted the case on its own certiorari motion.
The issue considered on appeal was whether the evidence presented proved, to the sufficient standard of proof, that Mr. Atkinson was in “actual physical control of the vehicle” under § 11-114 of the Md. Ann. Code, Transportation article, which definition § 21-902 of that article incorporated in its definition of “drive” for “driving while intoxicated.” Insufficient evidence, per the Court, appeared in the record to the effect that Mr. Atkinson committed actions fairly described by the circular term “drive” or the terms “operate” or “move” included within the statutory definition of “drive” under § 11-114; only the fourth definition of “drive,” being in “actual physical control of the vehicle,” might apply.
The Court discussed prior precedent that had not specifically addressed the issue of what behavior might constitute being in “actual physical control,” due to a charging defect in that prior case’s charging document, and another precedent where circumstantial evidence allowed a finding that the drunk motorist’s vehicle – with the engine off but hot, the lights on and the gear shift in drive – had in fact been operated very recently while the motorist was still drunk. Accordingly, the court found that that case was no guidance to the question of when a motorist was in “actual physical control” of a vehicle, since that four definition was not needed for the conviction of that motorist.
The Court discussed how a number of other states defined similar language in their drunk driving statutes, noting diverse definitions. Some seem to be motivated by a policy of deterrence and defined the term very broadly. The Court rejected this approach, finding that to convict those who merely sat in the driver’s seat in possession of ignition keys would effectively create a new crime that the General Assembly of Maryland did not create. From the decision, “We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol.”
The Court rejected the approach of Arizona’s highest court, which allowed for motorists who were already intoxicated to pull over and sleep off a drunk without fear of reprisal, noting that that approach might encourage drunk drivers to test their skills first before deciding to pull over. The Court noted that a number of factors may influence whether a motorist is considered in “actual physical control,” including:
1) whether or not the vehicle’s engine is running, or the ignition on;
2) where and in what position the person is found in the vehicle;
3) whether the person is awake or asleep;
4) where the vehicle’s ignition key is located;
5) whether the vehicle’s headlights are on;
6) whether the vehicle is located in the roadway or is legally parked.
The Court concluded that there was not evidence beyond a reasonable doubt that Mr. Atkinson was in actual physical control of his vehicle, and on that basis reversed the conviction. The Court warned, however, that its decision was not an invitation to motorists under the influence to test their luck on the roads and sleep off a night of drinking, and that evidence that the vehicle already had been operated, moved or driven while the motorist was already intoxicated could still lead to a conviction.
In my view, this decision is a fair reading of the statute involved and the balancing test is wise. Nonetheless, I think that there should be a public policy in favor of mitigating the DWI penalty when motorists who conclude that they actually had one too many pull off the road and shut the vehicle down, and it’s better to pull oversooner than to try to make it to the next exit, find a motel or all-night diner and exit the vehicle once the motorist has reached that unfortunate conclusion. If the motorist is tipsy, do we want her off the road here and now, or later three miles down the road at the Motel 6? I’d favor allowing such drivers to face a fine only, or a nominal jail sentence of 1-2 days, not because drunk driving is mild but because stopping drunk driving is important. I suspect that a decent number of drivers conclude only after they start driving that between their BAC and their fatigue, they should be off the road; they should be encouraged to pull over soonest with mitigated criminal exposure.
Atkinson indicated that the latter point is something for a legislature to consider, not an appellate court, though a trial court may and must consider the overall conduct of a motorist when it imposes any sentence and attempting to mitigate the effects of a bad choice certainly merits a mitigated sentence.