Parker v. State, 13984

• Decision Date: 18 January 1967
• Docket Number: No. 13984,13984
• Citation: 1967 OK CR 7,424 P.2d 997
• Parties: Jacob Ebey PARKER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 997

424 P.2d 997

Jacob Ebey PARKER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. 13984.

Court of Criminal Appeals of Oklahoma.

Jan. 18, 1967.

Rehearing Denied March 30, 1967.

Syllabus by the Court

1. It is unlawful and punishable by law, for any person who is under the influence of intoxicating liquor to drive, operate, or be in actual physical control of any motor vehicle within this State. 47 O.S.A. § 11--902(a)

2. Actual physical control, as used in Title 47 O.S.A. § 11--902(a), means: existing or present bodily restraint, directing influence, domination or regulation of any automobile, while under the influence of intoxicating liquor.

3. If a person has existing or present bodily restraining, directing influence, domination or regulation of an automobile, while under the influence of intoxicating liquor, he commits an offense within the provisions of the statute.

4. Title 47 O.S.A. § 11--902(a) is constitutional.

5. Title 47 O.S.A. § 11--902(a) defines two distinct offenses: one being, it is unlawful for any person under the influence of intoxicating liquor to drive or operate any motor vehicle within this State; and the other being, it is unlawful for any person who is under the influence of intoxicating liquor to be in actual physical control of any motor vehicle within this State.

6. Mandatory action of revoking driver's license is not part of judgment and sentence, being administrative action provided for in Title 47 O.S.A. § 6--205, and relief therefrom is through civil action.

Appeal from Municipal Criminal Court of City of Tulsa; Luther P. Lane, Judge.

Jacob Ebey Parker was convicted of the offence of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, and appeals. Judgment affirmed.

K. Bill Walker, Tulsa, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

BRETT, Judge:

Plaintiff in error, hereinafter referred to as defendant, was charged by information in the Municipal Criminal Court of the City of Tulsa, Oklahoma, with the offense of 'actual physical control of a motor vehicle while under the influence of intoxicating liquor'.

The charging portion of the information reads:

'On or about the 14 day of July, 1965, Jacob Ebey Parker, the above named defendant did wilfully and knowingly was in actual physical control of a 1965 Chevrolet Convertible Motor Vehicle bearing license tag No. '65 Ok. ZF 1887 at 4100 to 3600 South Lewis Street while said defendant was under the influence of intoxicating liquor, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.'

The defendant entered a plea of not guilty, waived his right to a jury trial, and the case was submitted to the trial judge on agreed stipulations.

The case was heard by the trial judge on December 9, 1965, and on December 30, 1965 judgment and sentence was passed, at which time defendant filed his motion for a new trial, which was overruled. Defendant was sentenced to pay a fine of $50, serve in the county jail for a period of ten days, and to pay court costs in the amount of $14. Thereafter defendant perfected his appeal to this Court.

Defendant's state of intoxication was stipulated, as well as the fact that he was in the automobile in such condition when apprehended by the police.

This prosecution was accomplished under the provisions of Title 47 O.S.A. § 11--902(a), which provides:

'It is unlawful and punishable as provided in paragraph (c) of this section for any person who is under the influence of intoxicating liquor to Drive, operate, or be in actual physical control of any motor vehicle within this state.' (Emphasis added).

Defendant urges that this statute is in violation of Art. 2, §§ 2 and 7 of the Oklahoma Constitution; and of Amendments 5 and 14 of the United States Constitution, in 'that said statute is so vague and indefinite that a person is deprived of due process of law; that said statute is confiscatory in that a person's license to operate a motor vehicle on public streets and highways is taken away.'

In an effort to support this contention, defendant cites three cases, none of which do we consider applicable to the facts at hand in this case.

However, in answer to defendant's contention, the Attorney General cites a 1958 case settled by the Montana Supreme Court. We consider that case to be squarely in point with the law and the facts at hand.

State v. Ruona, 133 Mont. 243, 321 P.2d 615, was a case in which the defendant was found in his parked automobile, while under the influence of intoxicating liquor, with the vehicle motor still running. The Montana statute, under which the defendant was prosecuted, is identical to the Oklahoma statute, except it does not include the word 'operate'. One of the two issues considered by the Montana Supreme Court was: 'Is the term 'actual physical control' used in the statute * * * so vague, ambiguous and uncertain as to render the statute void?'

In arriving at the conclusion that the term is Not unconstitutional, the court reached the following definition for 'actual physical control', and said:

'Using the term in 'actual physical control' in its composite sense, it means 'existing' or 'present bodily restraint, directing influence, domination or regulation.' Thus, if a person has existing or present bodily restraint, directing influence, domination or regulation, of an automobile, while under...