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Can you get a DWI without actually driving a vehicle? Yes, you can.

Under Minnesota DWI law, an individual can be convicted of the crime of DWI if he or she is driving, operating, or in physical control of a motor vehicle while under the influence of alcohol or a controlled substance. The cases involving someone driving or operating a motor vehicle are fairly straightforward. Physical control cases, however, are much more complex.

What does "physical control" of a motor vehicle mean? In Minnesota, the determination of whether an individual is in physical control of a motor vehicle under the influence of alcohol or a controlled substance is a difficult determination to make. However, the general rule of thumb is that a court will look at all relevant circumstances to determine whether an individual is in a position to exercise command or control of the vehicle.

A person is in physical control if he or she has the means to initiate any movement of the vehicle and if he or she is in close proximity to the operating controls of the vehicle. In making their decision, judges frequently consider the purpose of criminalizing physical control, which is to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventative measure to enable drunken drivers to be apprehended before they get behind the wheel.

Over the years, Minnesota courts have articulated a number of factors that bear on the question of whether someone is in physical control of a motor vehicle. For example, courts look at

  • the person's location in or by the vehicle;
  • the location of the ignition keys;
  • whether the person had been a passenger in the vehicle before it came to rest;
  • who owned the vehicle; and
  • the extent to which the vehicle was inoperable and, if inoperable, the whether the vehicle may have been rendered operable so as to be a danger to others.

In terms of examining these factors, it is helpful to describe some cases where physical control was found and not found.

In State v. Woodward, an officer found a woman standing on the side of the road next to her vehicle, which had a flat tire. The keys were in the ignition and the engine was running. Ms. Woodward explained that her friend had been driving the vehicle and that he had recently left to get another vehicle to drive them home. In looking at these circumstances, the Minnesota Court of Appeals found that physical control was present. For the court, it was significant that Ms. Woodward was found alone exercising control over the vehicle. The court said that the fact that the car had a flat tire did not mean the vehicle was mechanically inoperable and could be used to pose a danger to others.

In State v. Fleck, a concerned citizen called the police to report a man who was unconscious sitting in the driver's seat of a vehicle in the parking lot of an apartment complex. Officers responded and found Mr. Fleck had not recently driven because the vehicle was cold to the touch, the lights were not on, and it did not appear the vehicle had been running. However, the officer did observe a set of ignition keys in the vehicle's console between the driver and passenger seats. Under these circumstances, the Minnesota Supreme Court found that physical control was present because Mr. Fleck was in a position to exercise command or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger for others.

In Roberts v. Commissioner of Public Safety, Mr. Roberts's friends placed him in the driver's seat of his vehicle after becoming extremely intoxicated at an event. The friends disconnected the coil wire in the engine but left the keys on the dashboard. Mr. Roberts did not recall leaving the event or entering his car. Under these circumstances, the Minnesota Court of Appeals found no physical control. The court was persuaded by the fact that Mr. Roberts had been placed in the vehicle without his knowledge, with no intention of driving the vehicle, and the vehicle was mechanically inoperable. This was despite the fact that the keys were located on the dashboard and the car was parked in a public parking lot.

In State v. Pazderski, Mr. Pazderski had been involved in a domestic argument with his wife. To avoid further argument, Mr. Pazderski went outside to sleep in his car. The police were called three hours later, and they found Mr. Pazderski in the driver's seat with his head over toward the passenger seat. The car was not running, the keys were not in the ignition, and there was no evidence the car had been recently driven. Mr. Pazderski testified that he had experience sleeping in his car during hunting trips and that he intended on sleeping the rest of the night in the vehicle. The Minnesota Court of Appeals found there was insufficient evidence to show physical control. Mr. Pazderski was found sleeping in the front seat of his car in the driveway, with the keys outside the ignition, with the engine not running, and with no other devices of the car in operation. The court was convinced that Mr. Pazderski was simply using the car as a bed that night in the same manner as a tent or summer screen house in his backyard.

The Takeaway

So, what's the takeaway from all this? Well, for starters, an individual should know that Minnesota's DWI law encompasses more than driving under the influence of alcohol or a controlled substance--it also encompasses conduct showing someone is in physical control of a motor vehicle while under the influence. If you have been drinking alcohol or using controlled substances, your best bet is to stay away from the driver's seat of the vehicle altogether and to take care to avoid exercising control of the vehicle.

You should also know that using the car as a bed is not ideal because physical control can still be found. Courts tend to find no physical control when using a vehicle as a bed on private property as opposed to using a vehicle as a bed in a public setting. This is, however, not a hard-and-fast rule. Minnesota courts will look at all relevant factors to make a decision. It is also important to note that a passenger can exercise control of a motor vehicle if that person takes steps to assert control over the vehicle.

Physical control cases are fact-intensive. If you have been arrested or charged with a DWI in a physical control situation, your best bet is to hire an attorney to litigate the case on your behalf.

Bird, Jacobsen & Stevens Attorney Grant Borgen specializes in DWI law. Call or email him for a free counsulation. The timelines in DWI cases move fast, so contact him as soon as possible after an arrest for DWI.

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