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A determination of actual physical control depends on a weighing of the particular facts presented rather than the application of a boilerplate formula. Factors to be considered in any given case might include: whether the vehicle was running or the ignition was on; where the key was located; where and in what position the driver was found in the vehicle; whether the person was awake or asleep; if the vehicle's headlights were on; where the vehicle was stopped (in the road or legally parked); whether the driver had voluntarily pulled off the road; time of day and weather conditions; if the heater or air conditioner was on; whether the windows were up or down; and any explanation of the circumstances advanced by the defense. This list is not intended to be all-inclusive. It merely serves to illustrate that in every case the trier of fact should be entitled to examine all available evidence and weigh credibility in determining whether defendant was simply using the vehicle as a stationary shelter or actually posed a threat to the public by the exercise of present or imminent control over it while impaired.
Defendant Victor Scott Love was sleeping in his car with the engine running in the emergency lane of a freeway. Noticing defendant's car, the police officer stopped to investigate. The officer detected an alcohol odor on defendant and administered field sobriety tests which defendant failed. Defendant's ensuing DUI conviction was upheld on appeal based on a finding that defendant was in actual physical control of his vehicle at the time of his arrest because he did not turn off the ignition of his vehicle. Defendant appealed, arguing that his conviction was improper because he was not in actual physical control of the vehicle at the time of his arrest.
Under the circumstances, was the defendant in actual physical control of his vehicle at the time of his arrest, thereby justifying his DUI conviction?
On further review, the court vacated the order upholding defendant's conviction and reversed the conviction. The court held that the question of whether defendant had actual physical control of his vehicle was a question of fact that had to be resolved based on a consideration of all circumstances. The court rejected the presumption that defendant was in actual physical control of the vehicle unless he pulled totally off the road and turned off the ignition. At defendant's new trial, the trier of fact was required to weigh the facts presented and all circumstances to determine if defendant had relinquished actual physical control of his vehicle.