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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. 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 view of the legal standards we have enunciated and the circumstances of the instant case, we conclude there was a reasonable doubt that Atkinson was in "actual physical control" of his vehicle, an essential element of the crime with which he was charged. As long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it. The inquiry must always take into account a number of factors, however, including the following: 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. Mr. robinson was quite ill recently played. Id., 136 Ariz. 2d at 459. We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into [prior precedent].

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Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. The location of the vehicle can be a determinative factor in the inquiry because a person whose vehicle is parked illegally or stopped in the roadway is obligated by law to move the vehicle, and because of this obligation could more readily be deemed in "actual physical control" than a person lawfully parked on the shoulder or on his or her own property. Thus, our construction of "actual physical control" as permitting motorists to "sleep it off" should not be misconstrued as encouraging motorists to try their luck on the roadways, knowing they can escape arrest by subsequently placing their vehicles "away from the road pavement, outside regular traffic lanes, and... turn[ing] off the ignition so that the vehicle's engine is not running. " Emphasis in original). As we have already said with respect to the legislature's 1969 addition of "actual physical control" to the statute, we will not read a statute to render any word superfluous or meaningless. FN6] Still, some generalizations are valid. The Arizona Court of Appeals has since clarified Zavala by establishing a two-part test for relinquishing "actual physical control"--a driver must "place his vehicle away from the road pavement, outside regular traffic lanes, and... turn off the ignition so that the vehicle's engine is not running. Superior Court for Greenlee County, 153 Ariz. 2d at 152 (citing Zavala, 136 Ariz. Mr. robinson was quite ill recently met. 2d at 459). Statutory language, whether plain or not, must be read in its context.

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In the words of a dissenting South Dakota judge, this construction effectively creates a new crime, "Parked While Intoxicated. " See, e. g., State v. Woolf, 120 Idaho 21, 813 P. 2d 360, 362 () (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). In Garcia, the court held that the defendant was in "actual physical control" and not a "passive occupant" when he was apprehended while in the process of turning the key to start the vehicle. The question, of course, is "How much broader? 2d 483, 485-86 (1992). What constitutes "actual physical control" will inevitably depend on the facts of the individual case. No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Quoting Hughes v. State, 535 P. 2d 1023, 1024 ()) (both cases involved defendant seated behind the steering wheel of vehicle parked partially in the roadway with the key in the ignition). Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public. As a practical matter, we recognize that any definition of "actual physical control, " no matter how carefully considered, cannot aspire to cover every one of the many factual variations that one may envision. Petersen v. Department of Public Safety, 373 N. 2d 38, 40 (S. Mr. robinson was quite ill recently went. 1985) (Henderson, J., dissenting). And while we can say that such people should have stayed sober or planned better, that does not realistically resolve this all-too-frequent predicament. Management Personnel Servs.

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The court reached this conclusion based on its belief that "it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. " In People v. Cummings, 176 293, 125 514, 517, 530 N. 2d 672, 675 (1988), the Illinois Court of Appeals also rejected a reading of "actual physical control" which would have prohibited intoxicated persons from entering their vehicles to "sleep it off. " NCR Corp. Comptroller, 313 Md. 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. In this instance, the context is the legislature's desire to prevent intoxicated individuals from posing a serious public risk with their vehicles. 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. ' 2d 735 (1988), discussed supra, where the court concluded that evidence of the ignition key in the "on" position, the glowing alternator/battery light, the gear selector in "drive, " and the warm engine, sufficiently supported a finding that the defendant had actually driven his car shortly before the officer's arrival. Although the definition of "driving" is indisputably broadened by the inclusion in § 11-114 of the words "operate, move, or be in actual physical control, " the statute nonetheless relates to driving while intoxicated. Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). While we wish to discourage intoxicated individuals from first testing their drunk driving skills before deciding to pull over, this should not prevent us from allowing people too drunk to drive, and prudent enough not to try, to seek shelter in their cars within the parameters we have described above. Comm'r, 425 N. 2d 370 (N. 1988), in turn quoting Martin v. Commissioner of Public Safety, 358 N. 2d 734, 737 ()); see also Berger v. District of Columbia, 597 A. The court set out a three-part test for obtaining a conviction: "1.

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. " In the instant case, stipulations that Atkinson was in the driver's seat and the keys were in the ignition were strong factors indicating he was in "actual physical control. " Accordingly, a person is in "actual physical control" if the person is presently exercising or is imminently likely to exercise "restraining or directing influence" over a motor vehicle while in an intoxicated condition. A person may also be convicted under § 21-902 if it can be determined beyond a reasonable doubt that before being apprehended he or she has actually driven, operated, or moved the vehicle while under the influence. City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N. E. 2d 85, 87- 88 (1976) (footnote omitted), cert. A vehicle that is operable to some extent. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). Webster's also defines "control" as "to exercise restraining or directing influence over. " Neither the statute's purpose nor its plain language supports the result that intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty.