[¶ 1] Shyla Hawes appealed from a criminal judgment after a jury found her guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor and from a district court judgment affirming the suspension of her driving privileges by the Department of Transportation (“Department”). We conclude the district court’s jury instruction was not reversible error, the prosecutor’s closing argument was not obvious error and the Department’s decision was supported by a preponderance of the evidence. We affirm.
[¶ 2] In August 2006, an officer found Hawes on an Interstate 29 exit ramp, passed out in the driver’s seat of her vehicle with the keys in the ignition. A visibly intoxicated Hawes told the officer she was waiting for “OnStar” to bring her gas. She was arrested for being in actual physical control of a motor vehicle while under the influence of an intoxicating liquor. Hawes later claimed her car had run out of gas while a friend drove her home and she was waiting for her friend to return with gas when the officer found her. On September 21, 2006, the Department suspended Hawes’ driver’s license for ninety-one days. On February 14, 2007, Hawes was found guilty by a jury of being in actual physical control of a motor vehicle.
I. Criminal Appeal
A.
[¶ 3] Hawes argued the trial court’s jury instruction on actual physical control was reversible error. The contested jury instruction from her trial read as follows:
A vehicle is operable if it was operable or could have been made operable while the person was still under the influence of intoxicating liquor or while the person would have had an alcohol concentration of at least .08% by weight at the time of the performance of a chemical test within two hours after being in actual physical control of the vehicle. This is a question of fact for you to decide.
[¶ 4] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
Strand v. Cass County,
[¶ 5] The essential elements of actual physical control are: (1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs or other substances.
State v. Haverluk,
[¶ 6] The primary factor in determining actual physical control is whether the defendant has the ability to manipulate the controls of the vehicle.
Rist v. N.D. Dept. of Trans.,
[¶ 7] The trial court adequately instructed the jury of the law under the facts of this case. The jury instruction was not confusing because it properly informed the jury that one question of fact for them to decide was whether Hawes’ vehicle was operable, i.e. whether Hawes could have obtained gas while still under the influence of intoxicating liquor. This instruction may be problematic in a case where the question of fact regarding whether a vehicle could be made operable while the defendant is still intoxicated is more remote and difficult for the jury to ascertain. Therefore this jury instruction should not be used routinely without reference to the specific facts of a case.
See Cronquist,
B.
[¶ 8] During his rebuttal closing argument, the prosecutor said, “Balderdash. Smoke and mirrors. That’s what you got. Smoke and mirrors.” “Balderdash” is defined as “nonsense.” Webster’s New World Dictionary, 106 (2d ed.1980). Hawes’ counsel did not object at trial to *207 these comments but argued on appeal it was an obvious error affecting her substantial rights.
[¶ 9] “The control of closing arguments is largely within the discretion of the trial court, and we will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of the trial court’s discretion is shown.”
State v. Ash,
[¶ 10] When there has been
no
objection to a prosecutor’s argument, we do not reverse unless it was an obvious error affecting a defendant’s substantial rights.
State v. Evans,
[¶ 11] We do not countenance the prosecutor’s comments in this case. However, no objection was made at the time of trial and Hawes’ counsel concedes he did not understand the meaning of the prosecutor’s comments until he later researched the term “balderdash.” With this in mind, we will not assume the jury knew the meaning of the term nor will we assume the comments influenced the jury’s ability to judge the evidence fairly.
II. Civil Appeal
[¶ 12] The Department’s hearing officer concluded the police officer had reasonable grounds to believe Hawes was driving or was in actual physical control of a vehicle while under the influence of intoxicating liquor. Hawes argued the conclusion that she was driving while intoxicated was not supported by a preponderance of the evidence. The Department conceded the hearing officer made no finding of fact regarding when Hawes’ vehicle ran out of gas so it could not suspend Hawes’ driving privileges due to driving while under the influence. Hawes also argued the Department’s conclusion that she was in actual physical control of her vehicle was not in accordance with the law because Hawes’ vehicle was inoperable because it had run out of gas.
[¶ 13] The Administrative Agencies Practice Act governs review of an administrative agency decision to revoke a driver’s license.
Obrigewitch v. Director, N.D. Dept. of Transp.,
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
*208 3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
Id. See also N.D.C.C. § 28-32-46. Normally, we engage in a three-step process when we review an appeal from an administrative agency decision. Obrigewitch, at ¶ 7. The following three steps are considered:
(1) Are the agency’s findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the agency’s findings of fact? (3) Is the agency’s decision supported by the conclusions of law? Id. (citation omitted)
[¶ 14] In deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, our review is confined to the record before the agency and to determining “whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence.”
Kraft v. N.D. State Bd. of Nursing,
[¶ 15] We decline to find a vehicle that has run out of gas is inoperable as a matter of law. Rather, the findings of fact must support the hearing officer’s conclusion that Hawes was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The hearing officer made several findings of fact, including: 1) there was no dispute that Hawes was intoxicated, 2) the arresting officer found Hawes passed out in the driver’s seat with the keys in the ignition in the middle of an exit ramp of Interstate 29, 3) the vehicle’s hazard lights and headlights were on when the officer first spotted the vehicle, 4) Hawes told the officer she ran out of gas and was waiting for “OnStar” to bring gas to her, and 5) Hawes’ car was out of gas. These findings of fact support the hearing officer’s conclusion that Hawes was in actual physical control of a motor vehicle on a highway while under the influence of intoxicating liquor.
III.
[¶ 16] We conclude the district court’s jury instruction was not reversible error, the prosecutor’s closing argument was not obvious error and the Department’s decision was supported by a preponderance of the evidence. We affirm.