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FN6] Still, some generalizations are valid. At least one state, Idaho, has a statutory definition of "actual physical control. " ' " State v. Schwalk, 430 N. 2d 317, 319 (N. 1988) (quoting Buck v. North Dakota State Hgwy. Mr robinson was quite ill recently. See generally Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A. L. R. 3d 7 (1979 & 1992 Supp.

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Emphasis in original). Adams v. State, 697 P. 2d 622, 625 (Wyo. 3] We disagree with this construction of "actual physical control, " which we consider overly broad and excessively rigid. Is anne robinson ill. Id., 136 Ariz. 2d at 459. We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol. In view of the legal standards we have enunciated and the circumstances of the instant case, we conclude there was a reasonable doubt that Atkinson was in "actual physical control" of his vehicle, an essential element of the crime with which he was charged. Statutory language, whether plain or not, must be read in its context. While we wish to discourage intoxicated individuals from first testing their drunk driving skills before deciding to pull over, this should not prevent us from allowing people too drunk to drive, and prudent enough not to try, to seek shelter in their cars within the parameters we have described above.

Quoting Hughes v. State, 535 P. 2d 1023, 1024 ()) (both cases involved defendant seated behind the steering wheel of vehicle parked partially in the roadway with the key in the ignition). The court said: "An intoxicated person seated behind the steering wheel of an automobile is a threat to the safety and welfare of the public. The policy of allowing an intoxicated individual to "sleep it off" in safety, rather than attempt to drive home, arguably need not encompass the privilege of starting the engine, whether for the sake of running the radio, air conditioning, or heater. The court reached this conclusion based on its belief that "it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. " Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine. In Garcia, the court held that the defendant was in "actual physical control" and not a "passive occupant" when he was apprehended while in the process of turning the key to start the vehicle. NCR Corp. Mr. robinson was quite ill recently read. Comptroller, 313 Md.

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We have no such contrary indications here, so we examine the ordinary meaning of "actual physical control. " By using the word "actual, " the legislature implied a current or imminent restraining or directing influence over a vehicle. This view appears to stem from the belief that " '[a]n intoxicated person in a motor vehicle poses a threat to public safety because he "might set out on an inebriated journey at any moment. " Many of our sister courts have struggled with determining the exact breadth of conduct described by "actual physical control" of a motor vehicle, reaching varied results. The danger is less than that involved when the vehicle is actually moving; however, the danger does exist and the degree of danger is only slightly less than when the vehicle is moving. State v. Ghylin, 250 N. 2d 252, 255 (N. 1977). Most importantly, "actual" is defined as "present, " "current, " "existing in fact or reality, " and "in existence or taking place at the time. "

The court concluded that "while the defendant remained behind the wheel of the truck, the pulling off to the side of the road and turning off the ignition indicate that defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness, " and it reversed his conviction. For example, on facts much akin to those of the instant case, the Supreme Court of Wyoming held that a defendant who was found unconscious in his vehicle parked some twenty feet off the highway with the engine off, the lights off, and the key in the ignition but off, was in "actual physical control" of the vehicle. In those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily 'sleeping it off' in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not 'in actual physical control' of the vehicle.... ". Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public. No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Those were the facts in the Court of Special Appeals' decision in Gore v. State, 74 143, 536 A. As long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it.

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Neither the statute's purpose nor its plain language supports the result that intoxicated persons sitting in their vehicles while in possession of their ignition keys would, regardless of other circumstances, always be subject to criminal penalty. In Alabama, "actual physical control" was initially defined as "exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. " Further, when interpreting a statute, we assume that the words of the statute have their ordinary and natural meaning, absent some indication to the contrary. Balanced against these facts were the circumstances that the vehicle was legally parked, the ignition was off, and Atkinson was fast asleep. Thus, our construction of "actual physical control" as permitting motorists to "sleep it off" should not be misconstrued as encouraging motorists to try their luck on the roadways, knowing they can escape arrest by subsequently placing their vehicles "away from the road pavement, outside regular traffic lanes, and... turn[ing] off the ignition so that the vehicle's engine is not running. " Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. 2d 701, 703 () (citing State v. Purcell, 336 A. It is important to bear in mind that a defendant who is not in "actual physical control" of the vehicle at the time of apprehension will not necessarily escape arrest and prosecution for a drunk driving offense.

Key v. Town of Kinsey, 424 So. Webster's Third New International Dictionary 1706 (1986) defines "physical" as "relating to the body... often opposed to mental. " More recently, the Alabama Supreme Court abandoned this strict, three-pronged test, adopting instead a "totality of the circumstances test" and reducing the test's three prongs to "factors to be considered. " Even the presence of such a statutory definition has failed to settle the matter, however. In Zavala, an officer discovered the defendant sitting unconscious in the driver's seat of his truck, with the key in the ignition, but off. Idaho Code § 18- 8002(7) (1987 & 1991); Matter of Clayton, 113 Idaho 817, 748 P. 2d 401, 403 (1988). Denied, 429 U. S. 1104, 97 1131, 51 554 (1977). 2d 483, 485-86 (1992). Other factors may militate against a court's determination on this point, however. As for the General Assembly's addition of the term "actual physical control" in 1969, we note that it is a generally accepted principle of statutory construction that a statute is to be read so that no word or phrase is "rendered surplusage, superfluous, meaningless, or nugatory. "

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What constitutes "actual physical control" will inevitably depend on the facts of the individual case. 2d 735 (1988), discussed supra, where the court concluded that evidence of the ignition key in the "on" position, the glowing alternator/battery light, the gear selector in "drive, " and the warm engine, sufficiently supported a finding that the defendant had actually driven his car shortly before the officer's arrival. We therefore join other courts which have rejected an inflexible test that would make criminals of all people who sit intoxicated in a vehicle while in possession of the vehicle's ignition keys, without regard to the surrounding circumstances. When the occupant is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that the inebriated person is imminently going to control the vehicle in his or her condition, we do not believe that the legislature intended for criminal sanctions to apply.

The location of the vehicle can be a determinative factor in the inquiry because a person whose vehicle is parked illegally or stopped in the roadway is obligated by law to move the vehicle, and because of this obligation could more readily be deemed in "actual physical control" than a person lawfully parked on the shoulder or on his or her own property. Id., 25 Utah 2d 404, 483 P. 2d at 443 (citations omitted and emphasis in original). Superior Court for Greenlee County, 153 Ariz. 119, 735 P. 2d 149, 152 (). A person may also be convicted under § 21-902 if it can be determined beyond a reasonable doubt that before being apprehended he or she has actually driven, operated, or moved the vehicle while under the influence.

Webster's also defines "control" as "to exercise restraining or directing influence over. " Courts pursuing this deterrence-based policy generally adopt an extremely broad view of "actual physical control. " The question, of course, is "How much broader? While the Idaho statute is quite clear that the vehicle's engine must be running to establish "actual physical control, " that state's courts have nonetheless found it necessary to address the meaning of "being in the driver's position. " As long as such individuals do not act to endanger themselves or others, they do not present the hazard to which the drunk driving statute is directed.

In these states, the "actual physical control" language is construed as intending "to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers. " Accordingly, a person is in "actual physical control" if the person is presently exercising or is imminently likely to exercise "restraining or directing influence" over a motor vehicle while in an intoxicated condition. We believe that, by using the term "actual physical control, " the legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle. Active or constructive possession of the vehicle's ignition key by the person charged or, in the alternative, proof that such a key is not required for the vehicle's operation; 2. In State v. Bugger, 25 Utah 2d 404, 483 P. 2d 442 (1971), the defendant was discovered asleep in his automobile which was parked on the shoulder of the road, completely off the travel portion of the highway.

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