Petersen v. Department of Public Safety

373 N.W.2d 38, 1985 S.D. LEXIS 337

Opinions

FOSHEIM, Chief Justice.

The Department of Public Safety appeals from a circuit court order vacating the Department’s order to revoke Raymond A. Petersen’s driver’s license for one year because of his refusal to take a blood test. Ne reverse.

At 9:00 p.m. on December 18,1982, Highway Patrolman Farnsworth investigated a taxi parked off of old Highway 16 on a gravel approach leading to a farmstead. The car’s engine was not running, its lights were off, and the automatic transmission was placed in park. The keys were in the ignition.

One man, Raymond A. Petersen, was asleep in the front seat. The upper portion of his body was leaning against the driver’s door; his legs and feet were extended across the front seat. Farnsworth woke Petersen up, and noticed Petersen’s incoherence and the odor of alcohol. After administering a portable breath test and field sobriety tests, Farnsworth placed Petersen under arrest. Petersen was advised of his rights under the implied consent statute. He refused to submit to a blood test. Petersen did admit that he drank “half a pint” and that he had driven the car to the gravel approach.

The only issue on appeal is whether the arresting officer had probable cause to arrest Petersen for' being in “actual physical control” of a motor vehicle while under the influence of alcohol. SDCL 32-23-1(2).

In Kirby v. Dept. of Public Safety, 262 N.W.2d 49 (S.D.1978), this court found actual physical control of a vehicle where the defendant was dozing behind the wheel; the defendant was alone in the car; and, the motor was running. “In short, respondent was in a position in his vehicle under circumstances that would have supported a finding by a jury that he had driven the vehicle to the point where it was parked. [Citations omitted]. Perforce, there was probable cause to believe that respondent was in actual physical control of his vehicle.” Id. at 52. Similarly, this court found a defendant in actual physical control of a vehicle where the defendant was alone and asleep on the driver’s side of the vehicle with no one else present who could have driven the vehicle. State v. DuBray, 298 N.W.2d 811 (S.D.1980). Most recently, in State v. Hall, 353 N.W.2d 37 (S.D.1984), this court noted that “Hall was sitting in the driver’s seat and although he was slumped over, the vehicle controls were within his reach; Hall completely dominated the Buiek, the key was in the ignition, the doors were locked, he could have sat up and driven off at any time and no one else could have controlled the vehicle unless Hall relinquished his control.” Id. at 42.

It is apparent from this line of decisions and the facts of this case that Petersen, too, was in actual physical control of his vehicle. Consequently, the arresting officer had probable cause to arrest Petersen for violating SDCL 32-23-1(2), and properly requested Petersen to submit to a blood test after advising him of the implied consent laws.

The trial court erred as a matter of law when it concluded that the arresting officer did not have probable cause to arrest Petersen for being in “actual physical control.” The order appealed from is reversed and the case is remanded for proceedings consistent with this opinion.

WOLLMAN, J., and DUNN, Retired Justice, concur. MORGAN and HENDERSON, JJ., dissent. WUEST, Acting Justice, not participating.