Opinion
Cr. A. No. 0012001213
Submitted: April 1, 2002
Decided: May 22, 2002
OPINION
This appeal arises from appellant's conviction at the Court of Common Pleas for driving under the influence in violation of Del. Code Ann. tit. 21 Del. C. § 4177 (1995).
Del. C. Ann. tit. 21 Del. C. § 4177 (1995).
Statement of the Case
On November 21, 2000, appellant drove her vehicle to meet a friend at a restaurant parking lot at 4:30 p.m. Appellant and her friend decided to go to another restaurant. Appellant was intoxicated, thus, her friend drove her vehicle to the new restaurant. Appellant entered the restaurant and placed a take-out food order. Her friend remained in the vehicle. Her friend became irritated as he waited for appellant to return with the food. He entered the restaurant, saw appellant drinking an alcoholic beverage, and left the restaurant. He testified that he locked the vehicle doors, took the keys, and walked back to his vehicle parked at the first restaurant.Appellant was seen drinking the alcoholic beverage at the restaurant at about 5 p.m. Later, another patron approaching the restaurant saw appellant passed out in her vehicle. A restaurant employee called 9-1-1 and a police officer arrived on the scene at 6:23 p.m. The police officer observed that the vehicle's headlights were not on, the driver's side window was partially open, appellant was seated in the driver's seat, the ignition keys were on the passenger's seat, a bottle of vodka was in the vehicle and another bottle was directly outside the driver's side door. Appellant's blood alcohol level was .31.
On July 13, 2001, appellant was convicted in the Court of Common Pleas of driving under the influence. On August 24, 2001, appellant was sentenced. On September 7, 2001, appellant filed a notice of appeal to the Superior Court. Standard of Review
There is a two-part standard of review. First, the Court must review the trial court's determinations for errors in formulating or applying legal precepts. Second, the factual findings of the trial court are reviewable by this Court to determine whether there was sufficient evidence to support the findings, and to decide whether those findings were the result of a logical and orderly deductive process. Discussion
Downs v. State, 570 A.2d 1142, 1144 (Del. 1990).
Id.
"No person shall drive a vehicle . . . under the influence of alcohol." Drive is defined as "driving, operating, or having actual physical control of a vehicle."
In considering whether or not the defendant was in physical control of the motor vehicle while under the influence of alcohol, you may consider the defendant's location in or by the vehicle, the location of the ignition keys, whether the defendant had been a passenger in the vehicle before it came to rest, who owned the vehicle, the extent to which the vehicle was operable, and if inoperable, whether the vehicle might have been rendered operable without too much difficulty so as to be a danger to persons or property. You may consider these facts as well as any other facts or circumstances bearing on whether or not the defendant was then in physical control of a motor vehicle which was or reasonably could become a danger to person or property while the defendant was under the influence of alcohol.
Del. C. Ann. tit. 21 Del. C. § 4177(a)(1) (1995).
Del. C. Ann. tit. 21 Del. C. § 4177(c)(3) (1995).
Bodner v. State, 752 A.2d 1169, 1174 (Del. 2000).
By adding the language of "actual physical control" the legislature expanded the scope of the statute to include more than just driving. The Court made it clear that "[a] person can have actual physical control [of a motor vehicle] . . . without either operating or driving the vehicle."
Id. at 1172.
Id. at 1173.
In the case at bar, the Court of Common Pleas did not error in applying legal concepts or lack sufficient evidence to conclude that appellant was in actual physical control of the vehicle. Appellant was found in the driver's seat of her car, with the ignition keys accessible to her in the passenger's seat, and an empty bottle of vodka on the floorboard of her vehicle and another empty bottle on the parking lot surface outside the driver's side door. She previously drove the vehicle to the parking lot of the first restaurant and could have subsequently operated the car. She reasonably could have become a danger to persons and property by operating the vehicle in her legally intoxicated condition.
Conclusion
For the above reasons, appellant's conviction is upheld and the decision of the Court of Common Pleas is affirmed.
IT IS SO ORDERED.