State v. Ghylin

• Decision Date: 27 January 1977
• Docket Number: No. 568,568
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gerald A. GHYLIN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 252

250 N.W.2d 252

STATE of North Dakota, Plaintiff and Appellee, v. Gerald A. GHYLIN, Defendant and Appellant.

Crim. No. 568.

Supreme Court of North Dakota.

Jan. 27, 1977.

Syllabus by the Court

1. The purpose of Section 39--08--01, North Dakota Century Code, is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.

2. 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.

3. As used in Section 39--08--01, NDCC, the term 'highway' means more than the paved or improved portion used for travel and includes the shoulder and ditch alongside the roadway.

Daniel J. Chapman, Bismarck, for defendant and appellant.

John M. Olson, State's Atty., and Rolf P. Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee; argued by Rolf Sletten.

PEDERSON, Justice.

This is an appeal by the defendant, Gerald A. Chylin, from his conviction by the Burleigh County Court With Increased Jurisdiction of the crime of being in 'actual physical control' of a vehicle upon a highway while under the influence of intoxicating liquor, in violation of § 39--08--01, NDCC. In this proceeding, Ghylin contends that (1) he was not in 'actual physical control' of the vehicle, and (2) he was not 'upon a highway' at the time of his arrest. We affirm.

Ghylin was arrested by Burleigh County Deputy Sheriff Paul Genter about midnight on April 17, 1976, after Genter had stopped his patrol car two or three miles west of Wing, North Dakota, to investigate a vehicle in the ditch, apparently signalling for help with its headlights. Genter testified that as he approached Ghylin was just getting out of the driver's side of the vehicle and, in doing so, he made a motion as if he were taking the keys out of the ignition. The deputy sheriff observed that Ghylin had the keys in his hand as he alighted from the vehicle.

According to Genter's testimony, Ghylin told him that he had driven into the ditch and gotten stuck. After detecting the odor of alcohol, Genter asked Ghylin to perform some balancing and coordination tests, such as finger-to-nose and walking a straight line. Ghylin's poor performance of these tests indicated to Officer Genter that Ghylin was intoxicated; he placed him under arrest, informed him of his Miranda rights, and transported him to the Burleigh County sheriff's office.

Deputy Sheriff Genter also testified that during the ride to Bismarck, Ghylin again indicated that he had been driving the vehicle. At the Burleigh County sheriff's office, Ghylin was given a Breathalyzer test, which subsequently indicated a blood alcohol content of .14%.

Ghylin's version of the incidents of the evening differs markedly from Deputy Sheriff Genter's testimony, and is substantially as follows:

Ghylin left Wing in the company of a hitchhiker he had picked up earlier in the evening. The hitchhiker was actually driving the vehicle with Ghylin's permission when it left the road and went into the ditch a few miles west of Wing. When the deputy sheriff arrived on the scene, the hitchhiker, afraid of being arrested, hid on the floorboard of the vehicle and remained undetected. Ghylin did not tell Officer Genter that he had been driving that evening, as Genter, on two occasions, testified that he had, nor did he disclose to anyone that someone else was driving, apparently in an effort to protect the hitchhiker.

Ghylin also disputes the deputy sheriff's testimony that he removed the key from the ignition, or that he was given any balancing or coordination tests prior to his arrival at the Burleigh County sheriff's office.

In support of Ghylin's testimony, defense witness Albert Rosenau testified that at about midnight on the evening in question he observed the Ghylin vehicle and recognized Ghylin as a passenger in that vehicle, although he was unable to identify the driver. One additional conflict in the evidence involves a rear tire of Ghylin's vehicle which, from an examination of a picture introduced as an exhibit by Ghylin at trial, appears to be completely off the rim of the vehicle. Deputy Sheriff Genter testified that all of the tires were on the vehicle when he arrested Ghylin that evening.

The statute under which Ghylin was convicted, § 39--08--01, NDCC, states in part:

'1. No person shall drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if:

'a. * * *

'b. He is under the influence of intoxicating liquor;'

Ghylin first contends that the evidence was insufficient to support the conclusion that he was in actual physical control of his vehicle. We believe that, in view of the foregoing conflicting evidence concerning the events of the evening, sufficient evidence existed to support Ghylin's conviction of being in actual physical control of a vehicle while intoxicated. As we said in State v. Allen, 237 N.W.2d 154, 161 (N.D.1975):

'We have noted the different perspectives of the trial court and the appellate court as to circumstantial evidence:

'In State v. Miller, 202 N.W.2d 673 (N.D.1972); State v. Champagne, 198 N.W.2d 218 (N.D.1972), and State v. Carroll, 123 N.W.2d 659 (N.D.1963), we pointed out that the rule as to circumstantial evidence, at the trial level, is that such evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.' State v. Kaloustian, 212 N.W.2d 843, 845 (N.D.1973); Accord, State v. Fuchs, 219 N.W.2d 842, 846 (N.D.1974); State v. Neset, 216 N.W.2d 285, 287 (N.D.1974); and State v. Steele, 211 N.W.2d 855, 870 (N.D.1973).'

The admission of the defendant on two separate occasions that he was driving, along with the other evidence, is sufficient to support the trial court's conclusion that he was in actual physical control of the vehicle. Ghylin attempts to distinguish the instant case from the situation in State v. Schuler, 243 N.W.2d 367 (N.D.1976), in which we affirmed a conviction of being in actual physical control of a vehicle when the defendant was shown to have been behind the steering wheel of the vehicle, the ignition was turned to the 'on' position, and the transmission was engaged. He contends that in the instant case the ignition was off and the transmission was not engaged.

The definition of 'actual physical control' does not rest on such fine distinctions. The court, in Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 383 (1975), defined the phrase in these terms:

'A driver has 'actual physical control' of his car when he has real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements of machinery. * * *

'It is not dispositive that appellant's car was not moving, and that appellant was not making an effort to move it, when the troopers arrived. A driver may be in 'actual physical control' of his car and therefore 'operating' it while it is parked or merely standing still 'so long as (the driver is) keeping the car in restraint or in position to regulate its movements. Preventing a car from moving is as much control and dominion as actually putting the car in motion on the highway. Could one exercise any more regulation over a thing, while bodily present, than prevention of movement or curbing movement.' State v. Ruona, supra (133 Mont. 243) at 248, 321 P.2d (615) at 618.' (Punctuation as in original.)

In State v. Schuler, supra, we noted that the Oklahoma court in Hughes v. State, Okl.Cr., 535 P.2d 1023, 1024 (1975), sustained a conviction for being in actual physical...