State v. Bugger, 12278
| Decision Date | 06 April 1971 |
| Docket Number | No. 12278,12278 |
| Citation | 483 P.2d 442,25 Utah 2d 404 |
| Parties | d 404 STATE of Utah, Plaintiff and Respondent, v. Charles BUGGER, Defendant and Appellant. |
| Court | Utah Supreme Court |
Robert Van Sciver, Van Sciver, Florence, Hutchison & Sharp, Salt Lake City, for defendant-appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Asst. Atty. Gen., Salt Lake City, for plaintiff-respondent.
The defendant was found guilty of a violation of Section 41--6--44, U.C.A.1953, and from that conviction he has appealed to this court.
During the night of July 28, 1969, the defendant was asleep in his automobile which was parked upon the shoulder of a road known as Tippet's Lane in Davis County. The automobile was completely off the traveled portion of the highway and the motor was not running. An officer of the Highway Patrol stopped at the scene and discovered the defendant was asleep. With some effort the officer succeeded in awakening the defendant, at which time the officer detected the smell of alcohol and arrested the defendant for being in actual physical control of the vehicle while under the influence of intoxicating liquor.
The complaint charges the defendant with the violation of the statute above referred to which provides as follows:
It is unlawful and punishable as provided in subsection (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.
The defendant is here challenging the validity of the statute on the grounds of vagueness. However, we need not decide the case upon that ground. That part of the statute which states: 'be in actual physical control of any vehicle' has been before the courts of other jurisdictions which have statutes with similar wordings. The word 'actual' has been defined as meaning 'existing in act or reality; * * * in action or existence at the time being; present; * * *.' The word 'physical' is defined as 'bodily,' and 'control' is defined as 'to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from actions; to curb.' The term in 'actual physical control' in its ordinary sense means 'existing' or 'present bodily restraint, directing influence, domination or regulation.' 1 It is clear that in the record before us the facts do not bring the case within the wording of the statute. The defendant at the time of his arrest was not controlling the vehicle, nor was he exercising any dominion over it. It is noted that the cases cited by the plaintiff in support of its position in this matter deal with entirely different fact situations, such as the case where the driver was seated in his vehicle on the traveled portion of the highway; or where the motor of the vehicle was operating; or where the driver was attempting to steer the automobile while it was in motion; or where he was attempting to brake the vehicle to arrest its motion.
We are of the opinion that the facts in this case do not make out a violation of the statute and the defendant's conviction is reversed. We do not consider it necessary to discuss the other claimed errors raised by the defendant.
The statute formerly made it unlawful for a person under the influence of intoxicating liquor to drive any vehicle upon any highway within this state. 1 The amendment added a provision making it unlawful to be in actual physical control of a vehicle while under the influence of intoxicating liquor. It removed the need to be upon a highway before the crime was made out and did away with the necessity of driving before a crime was committed.
The reason for the change is obvious. It is better to prevent an intoxicated person in charge of an automobile from getting on the highway than it is to punish him after he gets on it. The amended statute gives officers a right to arrest a drunk person in the control of an automobile and thus prevent him from wreaking havoc a minute later by getting in traffic, or from injuring himself by his erratic driving.
It does not matter whether the motor is running or is idle nor whether the drunk is in the front seat or in the back seat. His potentiality for harm is leassened but not obviated by a silent motor or a backseat position--provided, of course, that he is the one in control of the car. It only takes a flick of the wrist to start the motor or to engage the gears, and it requires only a moment of time to get under the wheel from the back seat. A drunk in control of a motor vehicle has such a propensity to cause harm that the statute intended to make it criminal for him to be in a position to do so.
Restraining the movement of a vehicle is controlling it as much as moving it is. A person finding a drunk in the back seat of a car parked in one's driveway is likely to learn who is in control of that car if he should attempt to move it. A drunk may maliciously block one's exit, and in doing so he is in control of his own vehicle.
I think the defendant in this case was in control of his truck within the meaning of the statute even though he may have been asleep. He had the key and was the only one who could drive it. The fact that he chose to park it is no reason to say he was not in control thereof.
I, therefore, think that we should consider the question which he raises in his brief as to the validity of the statute.
Cases wherein an attack was made on statutes like ours have been decided in a number of jurisdictions. They hold the statute good.
In the case of State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954), ...
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...in a car parked completely off the traveled portion of the highway." 36 Wash.App. at 443, 674 P.2d 690 (citing State v. Bugger, 25 Utah 2d 404, 483 P.2d 442-43 (1971)). The Smelter court went on to note that the same result would occur under RCW 46.61.504, which does not allow conviction of......
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