State v. Fitzgerald (2nd District Court of Appeals, May 18th, 2011).

Facts:  The officer saw a car stopped in an intersection at around midnight. The car's lights were on.  The officer stopped and approached, observing that the car's engine was not running. As he walked by the passenger side he heard a voice say either “I'm not driving” or “I wasn't driving.” The voice came from the driver's side, and the officer then observed the Defendant sitting in the driver's seat.  The keys were not in the ignition.  The officer testified that he looked over to the driver's side and saw the car keys in the Defendant's right hand.  He did not know if the keys were in her hand the whole time or if they came from somewhere else.  The driver was arrested for DUI.  However, the circuit court dismissed the case after determining that the State could not prove that Fitzgerald was in actual physical control of a vehicle at the time of the alleged offense.

The lower Court believed, as do many, that the element of "actual physical control" in a DUI requires that the keys be in the ignition.  Not so fast says the 2nd Disctrict:  "the legislature defined the crime to include not only driving but also actual physical control to enable the drunken driver to be apprehended before he strikes.”  Furthermore, an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had “actual physical control” of the vehicle within the meaning of the statute.

The Court then said that in this case the Defendant was sitting in the driver's seat, and she readily produced the car keys. There was no evidence that she needed to search for the keys or that she retrieved them from the passenger, and the car was stopped in an intersection with its lights on.

Discussion:  According to this Court, public policy justifies relaxing the element of "actual physical control" to now included if the defendant "could have at any time started the automobile and driven away."  The Court seems to acknowledge this is a big step but attempts to limit its application based upon the specificly outlined facts presented.