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DUI: “Actual Physical Control” Explained

On Behalf of | Mar 3, 2021 | Criminal Defense

When talking about DUI cases, most people think about someone getting behind the wheel and driving a vehicle while under the influence of alcohol and/or drugs.  I recently wrote a blog about some DUI scenarios that have occurred in North Dakota and around the country. You can read that blog here. However, the law that covers DUI cases also covers something known as “actual physical control.” Similar to my DUI blog, let’s start again with what the law in North Dakota says.  The simplest reading of the law is as follows (with emphasis italicized on the portion relevant to this blog): “A person may not 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 … under the influence of intoxicating liquor.”[1] Just like DUI cases, being under the influence of drugs (legal or illegal) to the point of making you “incapable of safely driving” will also make you subject to potential prosecution if you are in “actual physical control” of a vehicle.[2] But what does “actual physical control” technically mean? Simply put, you do not have to be physically driving a vehicle to be charged with a crime.  Instead, the North Dakota Supreme Court has stated that you just need to be “able to manipulate the vehicle’s controls”[3] to be subject to prosecution under N.D. Cent. Code § 39-08-01. Another explanation given by the North Dakota Supreme Court is that an individual is in “actual physical control” of his car “so long as the driver is keeping the car in restraint or in position to regulate its movements.”[4] Essentially, if you are able to take control of the vehicle and are theoretically able to drive it, you are subject to the “actual physical control” element of N.D. Cent. Code § 39-08-01. For more insight into what constitutes as “actual physical control” look at the facts in the City of Fargo v. Novotny case from 1997. In that case, law enforcement came across a vehicle parked in a parking lot near a bar.[5] The headlights of the vehicle were on, but the engine was not running.[6]  Law enforcement found the defendant “in the seat behind the steering wheel with his girlfriend sleeping beside him.”[7] The keys to the vehicle were found in the ignition.[8] Although the defendant admitted that he was under the influence, his argument at trial was that he never intended to drive.[9] Even though he was in the driver’s seat, the defendant said he was technically a passenger in the vehicle since his girlfriend was the one who rented it and he was not listed as someone authorized to drive it.[10] The North Dakota Supreme Court clearly stated that “[i]ntent to operate a motor vehicle is not an element of the offense of actual physical control.”[11] The Court further elaborated it has “repeatedly determined the actual physical control offense proscribes intoxicated individuals from exercising any dominion over a vehicle, even if the individual is not driving and has no intent to drive, because the individual could set out on an inebriated journey at any moment.”[12] Based on this rationale, the North Dakota Supreme Court upheld the conviction for actual physical control in the Novotny case.[13] To summarize, you can be subject to prosecution for “actual physical control” if you are able to exercise control over your vehicle while under the influence.  Your intent does not matter. The ultimate question is whether you can take control of the vehicle while under the influence. Even in North Dakota’s harsh winter climates, the defense of “sleeping it off” while keeping the heat on in your vehicle is very likely NOT going to be a valid defense. The issue of “actual physical control” has been litigated multiple times in North Dakota and around the nation.  Below are some interesting tidbits of what can be considered “actual physical control” under N.D. Cent. Code § 39-08-01. To simplify things, assume that each of the situations listed below involves someone who is under the influence of alcohol and/or a controlled substance of some kind.

  • A conviction of actual physical control was upheld when a vehicle was found stuck in a ditch and the individual in the vehicle was found in the backseat.[14] The defendant in this case even had a friend testify that he was driving, he was the one who got the vehicle stuck, and tried to wake up the defendant without success so he walked to town to get a truck to get the vehicle out of the ditch.[15] The North Dakota Supreme Court stated that it has “upheld numerous convictions in which the defendant was not able to instantaneously operate the vehicle, but was still deemed to have had actual physical control because the temporary impediment could have been removed and the defendant could again have attempted to drive.”[16]
  • Even if your vehicle is out of gas, a court can still find you to be in actual physical control of a vehicle.[17] In one case, the defendant was passed out in the driver’s seat with the keys in the ignition.[18] The defendant told law enforcement that “she was waiting for ‘OnStar’ to bring her gas.”[19] The Court found that even though the defendant’s vehicle was out of gas (and she obviously could not drive the vehicle at that moment) that it did not “eliminate the possibility that she might obtain gas from any number of sources, such as a passing motorist or ‘OnStar,’ allowing her to set out on an inebriated journey at any moment.”[20]
  • In a 2017 case, the North Dakota Supreme Court found that an individual can be in actual physical control of a vehicle even if that vehicle is parked in a private driveway.[21] In that case, law enforcement responded to call for a domestic disturbance.[22]  When they arrived, they saw the defendant “with an armload of clothes” walk to a vehicle parked in the driveway, open the driver’s side door, and enter the vehicle.[23] Although the North Dakota Supreme Court appears to be silent on the issue, I did look up some documents from the lower court and it seems a set of keys were found to be about 3 feet to the side of the driver’s side door. The North Dakota Supreme Court stated that because the public did have a right to access the private driveway (an essential element for an actual physical control charge to stick), the defendant was subject to actual physical control laws under D. Cent. Code § 39-08-01 and N.D. Cent. Code § 39-01-01(64).

After reading these cases, and many more, it is very clear that North Dakota law views whether someone is in “actual physical control” of a vehicle very broadly. The same is true in Minnesota.[24] The cases above are just some highlights; there are numerous other scenarios that have been deemed to constitute “actual physical control.” This leaves us with a burning question: what does not constitute “actual physical control” in North Dakota? Below are a couple of examples.

  • The North Dakota Supreme Court recently looked at a case somewhat similar, but factually distinguishable from the driveway case cited above.[25] This 2020 case shows how important facts can be when determining the outcome of a case. In this case, the defendant was charged with actual physical control after law enforcement found him parked “on the grass lawn” next to his residence.[26] The defendant was found to be in the driver’s side of the vehicle.[27] The Court stated that it is a question of fact as to whether the public has a right of access to a private property.[28] The Court cautioned that including someone’s lawn as an area that the public has a right of access to would expand the traditional meaning of “right of access for vehicular use” as outlined under D. Cent. Code § 39-08-01.[29] The North Dakota Supreme Court found the hearing officer did not properly apply the law when considering the private lawn of the defendant and reversed the suspension of his driving privileges.[30] At the time of this blog posting, this matter is still being litigated at the district court.
  • A South Dakota case involving actual physical control contained some interesting facts that influenced the Supreme Court of South Dakota’s decision.[31] In the South Dakota case the defendant went to a dance with his girlfriend.[32] After the defendant had enjoyed some drinks, he went to his vehicle to have a cigarette.[33] The defendant reached into the passenger door of his vehicle to grab his cigarettes.[34] “In doing so, he inadvertently bumped the gear shift, causing it to pop into neutral, and the truck rolled into a parked vehicle.”[35] Although the defendant had clearly been drinking, it was not in dispute that his girlfriend was the designated driver that evening.[36] The Supreme Court of South Dakota found that the defendant was not in actual physical control of the vehicle.[37] It should be noted that South Dakota laws on actual physical control are almost identical to those proclaimed by the North Dakota Supreme Court.[38] Even though the key for the defendant’s truck was technically within his reach (“in a cubbyhole … by the dash”), the Supreme Court of South Dakota stated his reaching across the seat from the passenger side of the vehicle “to get a cigarette, while standing outside the vehicle, neither puts an actor in such control as would enable him to actually operate the vehicle in its usual and ordinary manner nor reflects any exercise of dominion or control over the vehicle.”[39] Based on this rationale, the Supreme Court of South Dakota reversed the lower court’s finding that the defendant was in actual physical control.

As these examples above illustrate, the question as to whether someone is in “actual physical control” of a vehicle can be a factually intensive endeavor. Of course, the easiest solution is to always have a sober ride home to avoid these types of inquiries.  If it is too late for that and you or someone you know could be facing charges involving actual physical control or a DUI, be sure to contact an attorney. Please feel free to contact Scott at Nilson Brand Law for a consultation.