Opinion
Case No. 20030479-CA.
Filed July 9, 2004. (Not For Official Publication).
Appeal from the Third District Juvenile, Salt Lake Department, The Honorable Joseph W. Anderson.
Sam N. Pappas, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Greenwood, Orme, and Thorne.
MEMORANDUM DECISION
Under Utah Code Ann. § 41-6-44(2)(a) (Supp. 2003), being in actual physical control of a vehicle while intoxicated is a "distinct offense,"Richfield City v. Walker, 790 P.2d 87, 89 n. 2 (Utah Ct.App. 1990), and we will "look to the totality of the circumstances to determine whether defendant was in actual physical control of his vehicle." Id. at 91. "`Because the trial court had the opportunity to view the witnesses and weigh their credibility, we defer to its findings unless the record demonstrates clear error.'" State v. Nichols, 2003 UT App 287, n. 1, 76 P.3d 1173 (quoting State v. Reed, 839 P.2d 878, 880 (Utah Ct.App. 1992)), cert. denied, 84 P.3d 239 (Utah 2003). Given the findings properly made in this case, we review the trial court's conclusion that C.L. was in actual physical control of the vehicle for correctness. See State v. Barnhart, 850 P.2d 473, 475 (Utah Ct.App. 1993).
C.L. does not argue that the "actual physical control" prong of the statute is unconstitutionally vague.
In evaluating the totality of the circumstances, the trial court considered the nonexclusive factors listed in Walker, see 790 P.2d at 93, and found that C.L. had driven the car to the location where it was found, was in possession of the car keys, and "had the apparent ability to control and operate the vehicle." C.L. orchestrated the extraction efforts, contacting a towing company, family and friends, and possibly "roadside assistance." He also undertook to verify that the car could not be started at some point after it first became lodged in the ditch. "A person need not actually move, or attempt to move, a vehicle in order to have actual physical control," Barnhart, 850 P.2d at 477, and even if C.L. did not intend to drive the vehicle, "[t]he subjective intent of a defendant not to operate the vehicle does not prevent a finding that the defendant was in actual physical control." Id. at 479.
Although C.L. was outside the vehicle when police arrived, "the statute is intended to prevent intoxicated persons from causing harm by apprehending them before they operate a vehicle." Id. at 478. Nor is the fact that the vehicle was inoperable dispositive. See Lopez v. Schwendiman, 720 P.2d 778, 781 (Utah 1986) (per curiam). C.L. claims that he did not start drinking until after the accident. Nonetheless, "[t]rial courts may certainly consider a person's consumption and intoxication occurring after the person has ceased operation of the vehicle but retained the apparent ability to operate the vehicle." Barnhart, 850 P.2d at 479.
Given the totality of the circumstances, the trial court correctly determined that C.L. was intoxicated while he had actual physical control of the vehicle.
C.L.'s complaint regarding the exclusion of witnesses is without merit. Even if the trial court erred in not allowing C.L. to recall his girlfriend for rebuttal testimony after C.L. had invoked the exclusionary rule, C.L. made no offer of proof as to what her testimony would have been had she been permitted to testify, and he therefore cannot demonstrate prejudice. See State v. Rammel, 721 P.2d 498, 499-500 (Utah 1986).
Affirmed.
I CONCUR: Pamela T. Greenwood, Judge.
Although I disagree with the majority's conclusion that C.L. was in actual physical control of a vehicle at the time of his arrest, I concur in the result because the trial court found that he was under the influence of alcohol at the time of the accident.
The majority opinion concludes that C.L. was in actual physical control of a vehicle at the time of his arrest. I find the support for this conclusion to be inadequate. Under our precedent, a determination of whether or not a defendant is in actual physical control of a vehicle requires an examination of the totality of the circumstances. See, e.g.,State v. Vialpando, 2004 UT App 95, ¶ 22, 89 P.3d 209. We have further articulated a nonexhaustive set of factors that should be examined in these situations, including:
"(1) whether [the] defendant was asleep or awake when discovered;
(2) the position of the automobile;
(3) whether the automobile's motor was running;
(4) whether [the] defendant was positioned in the driver's seat of the vehicle;
(5) whether [the] defendant was the vehicle's sole occupant;
(6) whether [the] defendant had possession of the ignition key;
(7) [the] defendant's apparent ability to start and move the vehicle;
(8) how the car got to where it was found; and
(9) whether [the] defendant drove it there."
Id. at n. 4 (alterations in original) (quoting State v. Barnhart, 850 P.2d 473, 477 (Utah Ct.App. 1993)).
Applying these factors to the instant case, although C.L. was awake and in possession of the keys to the car at the time the police encountered him, he was not inside the vehicle, the engine was cold and not running, and several other people were also in close proximity to the vehicle. Moreover, the record contains no evidence suggesting that C.L. was making any effort to operate the vehicle beyond seeking the assistance of a tow truck to extricate the vehicle from its predicament. At a minimum, I believe that to be found in actual physical control, a defendant must be in a "`position to manipulate one or more of the controls of the vehicle that cause it to move or affects its movement in some manner or direction.'" State v. Kitchens, 498 N.W.2d 649, 651 (S.D. 1993) (citation omitted); see Lopez v. Schwendiman, 720 P.2d 778, 780 (Utah 1986) (per curiam) ("`Positioning in the driver's seat is an element common to all of the cases that have found actual physical control of a motionless vehicle.'" (quoting State v. Smelter, 674 P.2d 690, 692 (Wash.Ct.App. 1984))). C.L. was found outside of the vehicle and away from its control mechanisms. Consequently, I cannot join with the majority in concluding that C.L. was in actual physical control of a vehicle at the time he encountered the police officers.
However, the trial court did find "that the State has met its burden of proof and that [C.L.] was under the influence of alcohol at the time of the accident," (emphasis added), which occurred well before C.L. encountered the police. C.L. does not challenge this finding on appeal. Consequently, he concedes this finding, and we should affirm on this basis. See, e.g., State v. Cruz-Mesa, 2003 UT 32, ¶ 18, 76 P.3d 1165 (affirming the defendant's conviction based, in part, upon an unchallenged finding).
Accordingly, I disagree with the majority's conclusion that the trial court properly found C.L. to be in actual physical control of the vehicle. However, because the trial court also found that he was under the influence of alcohol at the time of the accident, I concur in the result.