Atkinson v. State

CHASANOW, Judge. Maryland Code (1977, 1992 Repl.Vol.), Transportation Article, § 21-902 provides that a person “may not drive or attempt to drive” a vehicle while intoxicated, while under the influence of alcohol, while under the influence of a drug or a combination of alcohol and a drug, or while under the influence of a controlled dangerous substance. 1 The term “drive” ²⁰² has several meanings, as provided for in § 11-114 of the Transportation Article: “ ‘Drive’ means to drive, operate, move, or be in actual physical control of a vehicle.... ” The issue in the instant case is whether the appellant, who was sitting intoxicated and asleep in the driver’s seat of his vehicle, lawfully parked on the shoulder of the road, with the keys in the ignition but the engine off, was properly found to be in “actual physical control” of his vehicle and thereby convicted of driving while under the influence of alcohol. Because we believe he was not in “actual physical control” of his vehicle, as contemplated by the statute, we reverse his conviction. I. The appellant, Boyce Cornelius Atkinson, was arrested on March 7, 1992 and charged with common law battery and driving while intoxicated in violation of § 21-902 of the Transportation Article. 2 The case was tried in the Circuit Court for Harford County.

Atkinson pled not guilty and consented to trial by an agreed statement of facts based on the arresting ²⁰³ officer’s police report. 3 In exchange for Atkinson’s agreement to proceed on a statement of facts, the State agreed to nolle prosequi the battery charge and the § 21-902(a) charge of driving while intoxicated and proceed only with the lesser § 21—902(b) charge of driving under the influence of alcohol. The statement of facts read into the record by the prosecutor was as follows: “Your Honor, if the State were put to its burden of proof, it would produce the testimony of Harford County Sheriffs Deputy Thomas, who would testify that on March 7, 1992 at 7:00 P.M., while he was on routine patrol in the area of Abingdon Road near Route 40 in Harford County, Maryland, he observed a Jeep Wagoneer parked on the righthand shoulder of westbound Route 40. The deputy approached the vehicle, displaying Florida registration JCG96F, and he observed the occupant to be slumped over in the driver’s seat with the keys in the ignition and engine off. The deputy attempted to get the driver’s attention by knocking on the window.

This action resulted in no reaction from the driver. The deputy then opened the driver’s door, which was unlocked, and shook the driver in an attempt to wake him. At this time, Deputy Thomas detected a strong odor of alcoholic beverage coming from the vehicle. ²⁰⁴ Deputy Thomas was successful in awakening the subject and while talking to the subject, noted this person’s speech was slurred, eyes bloodshot and glassy. He detected a very strong odor of alcoholic beverage coming from the individual’s breath.

The driver produced a Florida driver’s license which identified him as Boyce C. Atkinson, whom the deputy would identify as the Defendant seated to the far left of Defense counsel in Court this morning. Deputy Thomas requested the Defendant to perform some field sobriety tests. The Defendant did not, stating he had a broken toe on his right foot. At that time, he was placed under arrest and placed in the patrol car of the deputy.

The deputy returned to the Jeep. At this time, he went back to the patrol car and while en route to the station, along with Deputy Thomas, the Defendant fell over in the back seat of the patrol car. At that time, the patrol car was stopped to check on Mr. Atkinson’s status. Deputy Thomas observed he wasn’t [sic] breathing and he had a regular pulse, but he was unsuccessful in awakening the Defendant.

He transported him to Fallston General Hospital in case there was need for medical attention. Upon arrival at the hospital, the Defendant regained consciousness and was evaluated by the Emergency Room staff. He was read his DR 15 Rights. He refused to submit to any type of tests.

He was then transported back to the Harford County Sheriffs Department and issued the appropriate traffic citations. All events occurred in Harford County, Your Honor. That would be the Statement of Facts.” Although Atkinson agreed to this statement of facts, he argued that, as a matter of law, the evidence was insufficient to convict him. He asserted that the facts did not support a finding that he had driven under the influence of alcohol in violation of § 21-902(b) because he did not “drive, operate, ²⁰⁵ [or] move,” his vehicle, nor was he in “actual physical control” of it.

See § 11-114. After hearing arguments from both sides, the trial judge found that “the evidence [was] sufficient to conclude he was in actual physical control of the vehicle” while under the influence, and entered a finding of guilty under § 21-902(b) for driving under the influence of alcohol. He sentenced Atkinson to sixty days imprisonment, with all but fifteen days suspended, and fined him $500, with all but $250 suspended. The judge placed Atkinson on three years supervised probation with the condition that he consume no alcohol.

Atkinson noted a timely appeal to the Court of Special Appeals. Before the Court of Special Appeals could consider the case, however, we issued a writ of certiorari on our own motion. Atkinson v. State, 329 Md. 337 , 619 A.2d 547 (1993).

II

The test for sufficiency of the evidence to sustain a criminal conviction on appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830, 842 (1980). In this case, the essential element in doubt is whether Atkinson was in “actual physical control” of his vehicle while under the influence of alcohol, in violation of the § 21-902(b) prohibition against driving while under the influence of alcohol. “Actual physical control” of a vehicle is one of four definitions included within the § 21-902(b) term “drive.” See § 11— 114. The other three definitions are “to drive, operate, [or] move” a vehicle. The legislature’s definition of “drive” as meaning, among other things, “to drive,” unquestionably engenders some confusion.

That seemingly circular definition is obviously meant to connote what we typically think of as driving, while the other § 11-114 definitions encompass other, ²⁰⁶ less obvious, activities. 4 In any event, “drive” (as a definition), “operate” and “move” are not at issue here, for each of these terms clearly connotes either some motion of the vehicle or some physical movement or manipulation of the vehicle’s controls. To “move” a vehicle plainly requires that the vehicle be placed in motion. “Drive” (as a definition) and “operate” have previously been addressed by this Court as follows: “ ‘[t]he term ‘driving’ is generally used to mean, in this connection, steering and controlling a vehicle while in motion; the term ‘operating,’ on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.’ ” Thomas v. State, 277 Md. 314, 318 , 353 A.2d 256, 258-59 (1976) (quoting McDuell v. State, 231 A.2d 265, 267 (Del.1967)). No motion of the vehicle or movement or manipulation by the defendant is alleged in the instant case, and so the result we reach necessarily turns on the meaning of the phrase “actual physical control.” Although the term “actual physical control” also was present in the prior version of the statute at issue in Thomas , the Court there never addressed it because the State had failed to specifically charge Thomas with being in “actual physical control” of his vehicle. The statute at issue in Thomas provided that “[i]t shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol.” (Emphasis added).

Md.Code (1957, 1970 Repl.Vol., 1974 Cum.Supp.), Article 66/6, § ll-902(b). The Court essentially construed the statute as having two distinct prongs, a “driving” prong and an “actual physical control” prong. Thus, while observing that “actual physical control” had its own independent meaning, the Court ²⁰⁷ found that this meaning was not at issue in the case because the State had only charged Thomas with “driving,” not with being in “actual physical control” of his vehicle. 5 Applying only the § 11—902(b) “driving” prong, the Court concluded that the State had failed to prove that Thomas had actually “driven” the vehicle in which he sat. Thomas’s vehicle had been discovered by a police officer standing on the paved shoulder of a lighted ramp with its headlights on.

Thomas was either passed out or asleep in the driver’s seat, with the windows up and the keys in the ignition, but the motor off. The officer awakened Thomas, asked him to step out of the vehicle, and subsequently arrested him, charging him under § ll~902(b) with driving under the influence. Analyzing his conviction only under the “driving” prong of § ll-902(b), we reversed, stating: “All the evidence in this case proves is that Thomas was in a vehicle by the side of a road, possibly intoxicated, at an early hour in the morning. Left to conjecture is whether he drove the vehicle to that location after imbibing alcohol or whether he had parked it there, been picked up by some other individual, and then dropped off at the same spot.... ” Id. 277 Md. at 325 , 353 A.2d at 262 .

Thus, because it never reached the question of what constitutes “actual physical control,” Thomas does not help us in our efforts today. The only other Maryland appellate opinion addressing the behavioral aspect of the drunk driving statute is the Court of Special Appeals’ decision in Gore v. State, 74 Md.App. 143, 536 A.2d 735 (Robert M. Bell, J.), cert. denied, 312 Md. 601 , 541 A.2d 964 (1988). In Gore , the current version of § 21-902 was at issue. Like Thomas, Gore did not address the meaning of “actual physical control,” although for a different reason.

In Gore , a police officer was dispatched to investigate a report of ²⁰⁸ a man asleep behind the wheel of an automobile in a convenience store parking lot. Upon arrival, he found Gore passed out behind the wheel of his car. The engine was off, but the keys were in the ignition in the “on” position, and the alternator/battery light glowed red on the dashboard. The gear selector was in the “drive” position and the car’s hood was warm to the officer’s touch.

The Court of Special Appeals concluded that this circumstantial evidence supported a rational inference by the factfinder that the appellant had actually driven his car while under the influence and upheld Gore’s conviction under § 21-902(a). Id. 74 Md.App. at 149 , 536 A.2d at 738-39 . The court never had to determine whether, at the time he was apprehended, Gore was in “actual physical control” of his car. Without guiding Maryland precedent, we begin our own analysis of what constitutes “actual physical control” with a brief review of the statute’s evolution, noting, as we did in Thomas , that the term “actual physical control” was intended to describe a distinct type of behavior.

Before the complete revision of Maryland’s motor vehicle laws by Chapter 1007 of the Acts of 1943, § 199 of Article 56 made it unlawful for a person to “operate or drive or attempt to operate or drive a motor vehicle on the public highways of this State when [under the influence].” Pursuant to the 1943 revision, § 153 of Article 66]i provided only that “[i]t shall be unlawful for [any person under the influence] to drive or attempt to drive any vehicle or trackless trolley within the State.” The revision deleted the term “operate” and removed the “public highways” restriction. This aspect of the statute remained the same until 1969, when the legislature added the term “actual physical control,” so that the statute then made it illegal “to drive or attempt to drive or to be in actual physical control of any vehicle.” See Ch. 158 of the 1969 Acts of Maryland, § 206(a) (emphasis added). In 1970, the General Assembly recodified § 206 as § 11-902 of Article 66/£ See Ch. 534 of the 1970 Acts of Maryland. In 1977, § 11-902 was recodified as present § 21-902 of the new Transportation Article.

See Ch. 14 of the 1977 Acts of Maryland, § 2. The ²⁰⁹ 1977 recodification retained the “actual physical control” language, but moved it from the proscriptive language of § 21-902 to the definition of “drive” found in § 11-114. The current scheme, therefore, proscribes only “driving or attempting to drive,” but “drive” is defined in § 11-114 as “drive, operate, move, or be in actual physical control of a vehicle____” One consequence of this organizational change is that it permits a defendant to be charged simply with “driving” while intoxicated or under the influence, this charge encompassing all the behavior described in the § 11-114 definition of “drive.” As for the General Assembly’s addition of the term “actual physical control” in 1969, we note that it is a generally accepted principle of statutory construction that a statute is to be read so that no word or phrase is “rendered surplusage, superfluous, meaningless, or nugatory.” Management Personnel Servs. v. Sandefur, 300 Md. 332, 341 , 478 A.2d 310, 315 (1984). Accordingly, the words “actual physical control,” particularly when added by the legislature in the disjunctive, indicate an intent to encompass activity different than, and presumably broader than, driving, operating, or moving the vehicle.

The question, of course, is “How much broader?” Many of our sister courts have struggled with determining the exact breadth of conduct described by “actual physical control” of a motor vehicle, reaching varied results. See generally Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A.L.R.3d 7 (1979 & 1992 Supp.). The Supreme Court of Ohio, for example, defined “actual physical control” as requiring that “a person be in the driver’s seat of a vehicle, behind the steering wheel, in possession of the ignition key, and in such condition that he is physically capable of starting the engine and causing the vehicle to move.” City of Cincinnati v. Kelley, 47 Ohio St.2d 94 , 351 N.E.2d 85, 87-88 (1976) (footnote omitted), cert. denied, 429 U.S. 1104, 97 S.Ct. 1131 , 51 L.Ed.2d 554 (1977). In Alabama, “actual physical control” was initially defined as “exclusive physical power, and present ability, to operate, ²¹⁰ move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment.” Key v. Town of Kinsey, 424 So.2d 701, 703 (Ala.Crim.App.1982) (citing State v. Purcell, 336 A.2d 223 (Del.Super.Ct.1975)).

The court set out a three-part test for obtaining a conviction: “1. Active or constructive possession of the vehicle’s ignition key by the person charged or, in the alternative, proof that such a key is not required for the vehicle’s operation; 2. Position of the person charged in the driver’s seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move; 3. A vehicle that is operable to some extent.” Id. at 703-04.

More recently, the Alabama Supreme Court abandoned this strict, three-pronged test, adopting instead a “totality of the circumstances test” and reducing the test’s three prongs to “factors to be considered.” Cagle v. City of Gadsden, 495 So.2d 1144, 1147 (Ala.1986). At least one state, Idaho, has a statutory definition of “actual physical control.” It is “being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving.” Idaho Code § 18-8002 (7) (1987 & 1991 Cum.Supp.); Matter of Clayton, 113 Idaho 817 , 748 P.2d 401, 403 (1988). Even the presence of such a statutory definition has failed to settle the matter, however. While the Idaho statute is quite clear that the vehicle’s engine must be running to establish “actual physical control,” that state’s courts have nonetheless found it necessary to address the meaning of “being in the driver’s position.” See, e.g., State v. Woolf, 120 Idaho 21 , 813 P.2d 360, 362 (Ct.App.1991) (court upheld magistrate’s determination that defendant was in driver’s position when lower half of defendant’s body was on the driver’s side of the front seat, his upper half resting across the passenger side).

Because of the varying tests and the myriad factual permutations, synthesizing or summarizing the opinions of other ²¹¹ courts appears futile. 6 Still, some generalizations are valid. One can discern a clear view among a few states, for example, that “the purpose of the ‘actual physical control’ offense is [as] a preventive measure,” State v. Schuler, 243 N.W.2d 367, 370 (N.D.1976), and that “ ‘an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public.’ ” Id. (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975)) (both cases involved defendant seated behind the steering wheel of vehicle parked partially in the roadway with the key in the ignition). This view appears to stem from the belief that “ ‘[a]n intoxicated person in a motor vehicle poses a threat to public safety because he “might set out on an inebriated journey at any moment.” ’ ” State v. Schwalk, 430 N.W.2d 317, 319 (N.D.1988) (quoting Buck v. North Dakota State Hgwy.

Comm’r, 425 N.W.2d 370 (N.D.1988), in turn quoting Martin v. Commissioner of Public Safety, 358 N.W.2d 734, 737 (Minn.App.1984)); see also Berger v. District of Columbia, 597 A.2d 407, 409 (D.C.1991) (stating in dictum that “[e]ven a drunk with the ignition keys in his pocket would be deemed sufficiently in control of the vehicle to warrant conviction.”). In these states, the “actual physical control” language is construed as intending “to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Courts pursuing this deterrence-based policy generally adopt an extremely broad view of “actual physical control.” For example, on facts much akin to those of the instant case, the Supreme Court of Wyoming held that a defendant who was found unconscious in his vehicle parked some twenty feet off the highway