DUI and the Legal Definition of "Driving" in Montana: Part 2 of 2

Part 2: Assessing Whether or not You are in Actual Physical Control of a Vehicle

By: Jewel Christensen

Previously, we discussed what it means to be in actual physical control of a vehicle. Actual physical control was defined as a person who “is not a passenger and is in a position to cause the vehicle to move or control the vehicle’s movement in some manner or direction.” One does not need to be awake in order to be in actual physical control. City of Great Falls v. Kiser, 2017 MT 41N, ¶ 8, 387 Mont. 536, 390 P.3d 162 (citing State v. Sommers, 2014 MT 315, 377 Mont. 203, 339 P.3d 65). This definition obviously could encompass many innocuous instances where someone did not intend to drive. Could someone get a DUI for simply returning to my vehicle to get a wallet? How can someone truly assess if they are in actual physical control of a vehicle while intoxicated?

The Montana Supreme Court has ruled that a totality of the circumstances test is to be used to determine whether or not a person was in actual physical control of a vehicle. The factors to be considered include but are not limited to the following: (1) where in the vehicle the defendant was located, (2) whether the ignition key was in the vehicle, and where in the vehicle the key was located, (3) whether the engine was running, (4) where the vehicle was parked and how it got there, (5) whether the vehicle was disabled, (6) how easily defendant could have cured vehicle’s disability. No single factor is more important than the other, and this certainly is not an exhaustive list of what could be considered by a jury, but the determination is ultimately up to the jury as to how each of these factors weighs into their decision. (State v. Sommers, 2014 MT 315 ¶ 28, 377 Mont. 203, 339 P.3d 65).

One of the most startling aspects of actual physical control is that movement is not necessary in order to establish that a person had actual physical control over a vehicle. The act of preventing movement is considered to be exerting actual physical control over a vehicle in the eyes of the Court. This means that a person sitting in a parked car while intoxicated (i.e. BAC over .08) could be charged and convicted of DUI, should the totality of the circumstances suggest that the occupant was indeed in actual physical control of the vehicle. See State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958). An exception appears to be if the vehicle is physically incapable of moving. “If a person cannot put a vehicle into motion, that person is not in actual physical control.” Sommers, at ¶22. If a vehicle is broken down and cannot move, a jury is allowed to consider this factor in determining if the occupant had actual physical control of the vehicle. There is, however, no firm rule that a vehicle’s inoperability would preclude an intoxicated person from being charged and convicted of DUI. See Sommers, ¶22, ¶31.

The assessment of whether or not one is in actual physical control of a vehicle certainly can be difficult to assess, particularly after a few drinks. The most important thing citizens and occupants of Montana can do to prevent being charged and/or convicted of being in actual physical control of a vehicle while under the influence of alcohol is use extreme caution when interacting with and utilizing their vehicle while drinking. “The statute’s prohibition on actual physical control is based on a policy of deterring intoxicated people from assuming physical control of a vehicle, even if they never actually drive.” Kiser, at ¶ 8. People wanting to be mindful of not violating this aspect of Montana’s DUI statute should try to plan ahead and avoid making return trips to your vehicle while drinking. However, if you do need access to your vehicle, be mindful of the entrance in which you seek access (i.e. driver’s side door vs. passenger side door), and the location of your car keys while inside your vehicle. It is also worth noting that a parking ticket is much less expensive than a DUI, so avoid any temptations to move your vehicle if you might be over the legal limit to drive. Additionally, ride share apps like Uber and Lyft are providing increasing numbers of Montana citizens with an alternative to driving while intoxicated, or needing to wait in their vehicle for a taxi or a friend or family member.

This post is for informational purposes only and is not legal advice. Seek advice from a criminal defense attorney to assess your case. Emma Buescher is a criminal defense and family law attorney based in Bozeman, Montana.