State v. Dean

Court of Appeals of Oregon

State v. Dean

733 P.2d 105, 84 Or. App. 108, 1987 Ore. App. LEXIS 3009

CourtCourt of Appeals of Oregon

DecidedFebruary 25, 1987

DocketM3-701; CA A39097

StatusPublished

Cited by1 cases

This text of 733 P.2d 105 (State v. Dean) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Dean, 733 P.2d 105, 84 Or. App. 108, 1987 Ore. App. LEXIS 3009 (Or. Ct. App. 1987).

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Opinion

NEWMAN, J.

Defendant appeals his conviction for driving under the influence of intoxicants. Former ORS 487.540.¹ He was stopped on suspicion of DUII while he was steering and braking a vehicle that was being towed by another vehicle on a public highway. He argues that he was not in actual physical control'of the vehicle being towed and, therefore, that he was not driving.² We affirm.

In State v. Duggan, 47 Ór App 219, 613 P2d 1110 (1980), rev’d on other grounds, 290 Or 369, 622 P2d 316 (1981), we interpreted former ORS 487.005(5), which then provided: “ ‘Driver’ or ‘operator’ means any person who is in actual physical control of a vehicle.” We stated:

“A person can be in actual physical control of a motor vehicle even though the vehicle is not being propelled by its own motive power. While a vehicle is being towed, the person behind the wheel assumes responsibility for steering and braking the vehicle in a safe manner. Although the operator of a towed vehicle does not control the speed or gross direction of travel of the vehicle, he has control within the confines of the linkage to the towing vehicle. Unless properly operated, the towed vehicle could go into the adjoining lanes of travel or off of the road, and if not properly braked, could run into the towing automobile. Consequently, the towed vehicle has the potential of creating a hazard if not properly operated or controlled.”

* * * *

[111]*111“[We conclude] that a person who physically controls a towed vehicle is driving the vehicle for purposes of [the driving while suspended statute].” 47 Or App at 221.

The Supreme Court reversed, because the definition of a motor vehicle in the statute required that the vehicle be self-propelled at the time when the offense was committed.³ The court did not, however, question our conclusion that the defendant was “in actual physical control” of the vehicle. We adhere to our reasoning in Duggan and hold that a person who is steering and braking a vehicle being towed is “driving” for purposes of former ORS 487.540.

Affirmed.

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NEWMAN, J.

Defendant appeals his conviction for driving under the influence of intoxicants. Former ORS 487.540.¹ He was stopped on suspicion of DUII while he was steering and braking a vehicle that was being towed by another vehicle on a public highway. He argues that he was not in actual physical control'of the vehicle being towed and, therefore, that he was not driving.² We affirm.

In State v. Duggan, 47 Ór App 219, 613 P2d 1110 (1980), rev’d on other grounds, 290 Or 369, 622 P2d 316 (1981), we interpreted former ORS 487.005(5), which then provided: “ ‘Driver’ or ‘operator’ means any person who is in actual physical control of a vehicle.” We stated:

“A person can be in actual physical control of a motor vehicle even though the vehicle is not being propelled by its own motive power. While a vehicle is being towed, the person behind the wheel assumes responsibility for steering and braking the vehicle in a safe manner. Although the operator of a towed vehicle does not control the speed or gross direction of travel of the vehicle, he has control within the confines of the linkage to the towing vehicle. Unless properly operated, the towed vehicle could go into the adjoining lanes of travel or off of the road, and if not properly braked, could run into the towing automobile. Consequently, the towed vehicle has the potential of creating a hazard if not properly operated or controlled.”

* * * *

[111]*111“[We conclude] that a person who physically controls a towed vehicle is driving the vehicle for purposes of [the driving while suspended statute].” 47 Or App at 221.

The Supreme Court reversed, because the definition of a motor vehicle in the statute required that the vehicle be self-propelled at the time when the offense was committed.³ The court did not, however, question our conclusion that the defendant was “in actual physical control” of the vehicle. We adhere to our reasoning in Duggan and hold that a person who is steering and braking a vehicle being towed is “driving” for purposes of former ORS 487.540.

Affirmed.

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733 P.2d 105, 84 Or. App. 108, 1987 Ore. App. LEXIS 3009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dean-orctapp-1987.

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