[78 Ariz. 9] Ross F. Jones, Atty. Gen., Earl E. Weeks, Asst. to the Atty. Gen., for the State.
Ed W. Hughes, Phoenix, for defendant.
Defendant Kelo T. Webb was arrested on the 17th day of November, 1953, and was charged--by a direct information filed in the Superior Court of Maricopa County--with being 'in actual physical control' of a motor vehicle while under the influence of intoxicating liquor, contrary to the statute. He entered a plea of not guilty and the case was set for trial. The setting was thereafter vacated, and with the consent of the defendant and pursuant to the provisions of Section 44-2401, A.C.A.1939, the cause was certified to this court by Honorable Henry S. Stevens, one of the judges of the superior court, for decision on a point of law which was to the mind of the trial court so important and doubtful as to require such action.
The question presented is: whether under the facts, as hereinafter stated, the defendant was 'in actual physical control' of the motor vehicle in question, in violation of Chapter 3, section 54, Laws 1950, First Special Session (now appearing as Sec. 66-156, 1952 Cumulative Supplement to A.C.A.1939).
From the agreed statement of facts it appears that officer N. Brennan was travelling north on North Central Avenue in Phoenix at 2:00 a.m. on the morning of November 17, 1953, in response to a call, and observed a 1953 Ford pickup truck stopped in the westbound lane of Roosevelt Street, near the intersection of Central Avenue and Roosevelt. The lights were on and no one could be seen at the wheel, it
appearing that the vehicle was stalled, as other cars were going around it.
On his return from his call about twenty minutes later, officer Brennan observed the truck still in the same location and went over to investigate. The truck was parked in the westbound traffic lane of Roosevelt Street, next to some barricades which had been set up by street painters. The truck, together with the barricades, blocked the entire west traffic lane. The vehicle had bright lights on, and the motor was running. The officer found defendant to be in a very intoxicated condition, 'passed out' or asleep [78 Ariz. 10] with both hands and his head resting on the steering wheel.
Officers McFarland and Peterson drove a patrol wagon to the scene in answer to officer Brennan's call, and they too found defendant to be in an intoxicated condition and found he had difficulty walking. A blood-alcohol test was taken later and it revealed that defendant's blood contained 0.231% of alcohol by weight. It further appears that defendant has a prior conviction of driving a motor vehicle while under the influence of liquor.
Section 54, Chapter 3, Laws 1950, First Special Session, provides in part as follows:
'It is unlawful and punishable as provided in paragraph (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.' (Emphasis supplied.)
Defendant concedes the facts warrant a finding he was under the influence of intoxicating liquor, but contends the words 'actual physical control' were not meant by the legislature to encompass such conduct as is here involved. It is argued that the statute in question is concerned with the driving of an automobile and other acts and conduct of a positive nature, and does not apply to the instant case where the vehicle was not moving and defendant was asleep or unconscious.
On the other hand, the state points out there has been a most significant change wrought in our law by the enactment of the statute, supra. Formerly, our law on the matter was Section 66-402, A.C.A.1939, which read:
'Any person under the influence of intoxicating liquor or narcotic drugs, or who is a habitual user of narcotic drugs, who shall drive any vehicle upon any highway within this state, shall be guilty of a misdemeanor, * * *.'
This statute refers only to driving, and it was held that it applied only in cases where the vehicle was in motion, State v. Ponce,59 Ariz. 158, 124 P.2d 543; cf. Gibbs v. State,48 Ariz. 25, 58 P.2d 1037. In enacting the new law, the word 'drive' was retained, and the words 'or be in 'actual physical control" were added in the disjunctive. The conclusion we draw therefrom is that the legislature intended the present law to embrace fact situations not covered by the old, more particularly the ...