Estate of Vestre, 2011 ND 144

Vanlishout was arrested for actual physical control of a vehicle while intoxicated after being found in the backseat of a car stuck in a ditch.
The car, registered to Vanlishout, was running when the deputy arrived and could have been moved; the deputy observed Vanlishout in the backseat.
Breath test showed BAC .146 within the two-hour window; blood test taken after arrest showed BAC .17.
A friend testified Vanlishout slept in the backseat and did not drive; he allegedly left to fetch a tow
The hearing officer concluded there were reasonable grounds for actual physical control and suspended Vanlishout’s license for one year; the district court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there were reasonable grounds to find actual physical control.	Vanlishout argues no grounds existed.	Department contends grounds existed.	Yes; grounds sufficient to suspend.
Whether being in the backseat while intoxicated can constitute actual physical control.	Presence in backseat negates control.	Control can exist despite location.	Yes; backseat location is not dispositive.
Whether the evidence supports the license suspension under the statute.	Evidence does not meet statutory criteria.	Evidence does meet criteria for suspension.	Evidence supports suspension.

Hawes v. North Dakota Dep’t of Transp., 2007 ND 177 (ND 2007) (elements of actual physical control; intoxication and ability to operate)
City of Fargo v. Novotny, 1997 ND 73 (ND 1997) (intent to operate not required for actual physical control)
Salvaggio v. North Dakota Dep’t of Transp., 477 N.W.2d 195 (ND 1991) (temporary impediments do not defeat actual physical control)
Rist v. North Dakota Dep’t of Transp., 2003 ND 113 (ND 2003) (focus on defendant’s ability to manipulate controls)
State v. Ghylin, 250 N.W.2d 252 (ND 1977) (external factors and location in evaluating control)
City of Fargo v. Theusch, 462 N.W.2d 162 (ND 1990) (defendant asleep with ignition key in coat pocket)