*1 Suspension of the the Matter Driver’s License of Mark Alan VOGT. Jones, Gen., A.I. Stah- Atty. Myrna Jim VOGT, Mark Alan Boise, Gen., Deputy (argued), Atty. man
Petitioner-Respondent-Respondent respondent-appellant. for Appeal, on se, Bellevue, peti- Vogt, pro Mark Alan tioner-respondent. Idaho, STATE of Respondent-Appellant-Appellant McDEVITT, Justice. Appeal. on Vogt, Dempsey Wade Respondent (last unknown), name the owner Rick drinking on question, were out
Supreme of Idaho. Court they When night of March 1988. bar, the ve- Wade took control of left the Rick, he felt that both hicle from Vogt were too intoxicated Rick and vehicle, an older Wade drove.the middle, truck, Vogt During right. Rick sat on far asleep or passengers either fell drive both knowing ei- out. where passed lived, parking lot drove to a store ther man and left the a block of own house within running with the on. It was truck heater he did the men to night and not want cold p.m. car. At about 11:30 freeze home. Wade walked a.m., Deputy approximately 1:00 Sher- in the same
iff The en- where Wade had left it. location Vogt and Rick gine was still asleep or inside. still unconscious on the floor. were both gear shift straddling feet were lever, side and with one foot passenger side. Rick was the other on head across the with his lying down Vogt’s lap. on the win-
Sharp rapped several times Vogt awoke. the truck before dow of Sharp testified Vogt testified hand. his left off the Vogt’s driv- Deputy Sharp asked to see license, perform requested er’s refused, claim- test. a field test because ing he need not take the Sharp took car. he was not *2 Canyon County to the Detention Cen- vehicle. The facts indicate was ei- ter, provided driving where he ther not or with a standard un- up. til him rights advisory woke form. again asked to submit to a exception The state takes to the dis test, breath and refused. trict court’s reliance a of intent determining in drive whether the a li
Vogt’s driver’s license was seized for re- may argues cense be revoked. The State fusing Vogt requested to take the test. a required, that it should be not con hearing. hearing, show cause suspension text of driver’s license for fail Dempsey Deputy Sharp ure to submit to a Blood Alcohol Content testified. The found that al- (BAC)test, prove person that a found in though “the defendant was behind the the driver’s of a motor wheel,” Deputy Sharp proba- did not have running actually the motor intended to ble cause to believe that actual physical control of the and “had intended to and drive that vehicle” leading proposition case on this is In mag- was unconscious. The 817, re State v. 748 (1988), istrate ordered license returned. P.2d 401 wherein the defendant ar- The district court affirmed. gued physical not in “actual control” of his vehicle because provides: Code Idaho slumped over the wheel and uncon- (1) Any person who in actual drives or is argument, rejected scious. This Court this physical control of a motor vehicle this stating that: state shall be deemed to have 18-8002(7)requires Idaho Code evidentiary consent to an test for concen- fendant to be in the driver’s request a tration of alcohol ... at the Here, sitting in Clayton was the driver’s
police
having
grounds
officer
reasonable
seat behind the
wheel with
person
has
to believe that
been
lights
Any
engine running and the
on.
physical
control of a motor ve-
actual
person assumes this
time an intoxicated
alcohol,
hicle while under the influence of
position,
public safety
and welfare
mit
(4) If
evidentiary
cer____
(7)
tor vehicle
this
with the motor
“Actual
sjc
sfc
shall be
section,
the motorist
[*]
j)í
test
physical control” as used in
shall be defined as
seized
running or with the mo-
s}:
aje
...
refuses to take the
[h]is
a}:
the motor vehicle
license or
a}s
police
9jc
being in
[*]
‡
offi-
per-
cated.
required
intent to drive in the context of
license
danger
113 Idaho at
Clayton, and hold
We take this
18-8002. The rule does
be
Rather,
threatened,
prove
the vehicle.
public by driving
the statute
opportunity to reaffirm
547 Otherwise, pre in order to held. in “actual control” him. prophylactic of the rule turned to serve the nature See, public. Mason v. protect appeal. costs on No State, (Okla.Crim.1979); P.2d State, (Okla.Crim. Hughes v. P.2d 1023 BAKES, C.J., and JOHNSON 1975); Taylor, 203 Mont. State BOYLE, JJ., concur. State, P.2d Adams v. *3 BISTLINE, Justice, specially (Wyo.1985); Bugger, 25 Utah concurring. City 2d Kan of magistrate my it the In view seems that Troutner, (Mo. City v. sas S.W.2d extremely already fact has come trier of App.1976). making very close to the determination Thus, only inquiry hold that be- we the made on which this Court directs be suspen- judge fore the a driver’s license finding make a mand. That direction is to is wheth- sion 18-8002 body, it position Vogt’s the of which as to position” is in the of er the “driver’s component means the is assumed all of running with the or with a vehicle motor on the parts, Sharp when Officer arrived moving. the vehicle magistrate scene. When the made However, ruling of dispose our does not him, cision, on the before based magistrate case. present the The had not “Vogt that was who Vogt that was “behind the wheel” any to previously and did not intend at vehicle, finding made no fact as to but of finding (drive),” implicit therein was the Vogt actually in the “driver's that he was not the driver's position” requires. as the statute having nothing to do also which collec- with the various mechanisms testimony conflicting There go the an older operation into point. testified that truck, brake, i.e., the the foot floor, Vogt’s were on he made feet the accelerator, clutch, gear shift. the and the drawing appears place a crude to which majority provi- utilizes the properly The car, both feet on the driver’s side of the but 18-8002(7) crite- of I.C. as the sole sions position Vogt’s according the exact by rion which determine that inwas testimony. is not clear td from his the “actual control”1 of Studebak- addition, Sharp provision That defines “actual er truck. right the being as driver’s physical control” hand, Vogt the other that his On testified mo- running.2 The motor car, left foot was on driver’s side of the by left driver who running tor had been passen foot on the but remained departed. side, straddling ger gear shift lever. Moreover, magistrate clearly off entitled to hand, Vogt had no intent to with his left a fact which find that exhibited if it appeared tend to show was not the truck would wheel, sitting squarely legs in the and two feet were not simulta- behind the two neously positioned did not both position. magistrate driver’s finding pedals, also if his fact as to the and clutch set forth brake Vogt’s body, positioned it was and hands were not position of or whether arms gear There and the in the control the wheel actually Implicit fore, remand on that lever. we must for a shift find- are the If the finds that to drive issue. testified, ings then those facts to actually position,” in the “driver’s which up- accurately of his which are recounted suggestion driving, language Any person is no that the vehicle is unusual. 2. There 1. This drive, occupants moving, Like- two is in control. or that either of the or about wise, person is in actual control. such majority opinion. Even had not been
asleep statement him to that effect would super- have been
fluous apparent undisputed facts.
The majority today uses this occasion to ringing announce in terms that under I.C. any person who is found in the of a motor vehicle with shall be deemed (i.e. considered, presumed) to have consent to a test That declaration is clear and unequivocal, and no one should
quarrel Henceforth, with it. fully occupying operator’s seat of a *4 vehicle the motor of which is will
know opinion reason of the court’s he has consent to test- ing, refuse, which he can but if he refuses suspended see his license for 180
days. The fact that he did not intend to operate the vehicle is now of no conse-
quence. question remaining answered, to be however, is whether this hard and fast rule which the Court in ruling makes intent to .be no applied defense should be retroac- Vogt. generally accepted
rule is that it should not. For that reason I would affirm the two judges who in fair-
ness did penalize Vogt for conduct thought
which was to be commendable in (1988) (Bistline, J., specially concur- ring). ROSS, Plaintiff-Respondent,
Sheila ROSS, Defendant-Appellant. Van E. Supreme Court of Idaho.