State ex rel. Department of Public Safety v. Kelley
2007 OK CIV APP 99, 2007 Okla. Civ. App. LEXIS 76, 172 P.3d 231 (2007)
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Rule of Law:
A person is not in 'actual physical control' of a vehicle while intoxicated if the totality of the circumstances indicates they are using the vehicle as stationary shelter and have no intent to operate it, thereby posing no threat to the public.
Facts:
- Shaun Eric Kelley had been drinking alcohol at Danny Bob's Hideout bar.
- At the time, Kelley was homeless and living out of his Chevrolet Tahoe.
- Around 2:00 a.m., Kelley went to his Tahoe, which was legally parked in the bar's parking lot.
- He placed the keys in the ignition to play the radio but did not start the engine.
- Kelley then went to sleep in the rear cargo area on top of the folded-down back seats, with pillows and a blanket.
- He told Officer Kushmaul he had no intention of driving until the next morning and had an alarm set for 6:30 a.m.
- Officer Kushmaul found Kelley asleep, shoeless, and noted he smelled of alcohol and was unsteady on his feet.
Procedural Posture:
- Officer Kushmaul arrested Shaun Eric Kelley for being in actual physical control of a vehicle while under the influence of alcohol.
- The Department of Public Safety (DPS) revoked Kelley's driver's license.
- Kelley requested an administrative hearing, which sustained the revocation.
- Kelley appealed the administrative decision to the district court (a trial court).
- Following a non-jury trial, the district court set aside the revocation order, directing DPS to return Kelley's license.
- DPS, as the appellant, appealed the district court's decision to the Oklahoma Court of Civil Appeals.
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Issue:
Does a person who is intoxicated and asleep in the rear cargo area of a legally parked vehicle, with the keys in the ignition solely to power the radio, exercise 'actual physical control' of the vehicle under Oklahoma's DUI statute?
Opinions:
Majority - Bay Mitchell
No. A person in these circumstances is not in actual physical control of the vehicle. The determination of 'actual physical control' (APC) must be made on a case-by-case basis, considering the totality of the circumstances. Unlike prior APC cases where individuals were found behind the steering wheel, in a roadway, or with the engine running, Kelley was in the rear cargo area of a legally parked vehicle with the engine off. There was no evidence he had recently driven while intoxicated or that he intended to do so; instead, the evidence showed he was using the vehicle for shelter. The court adopted the reasoning from an Illinois case, finding this to be one of 'those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily ‘sleeping it off’ in his vehicle.' Because Kelley posed no threat to the public and was a passive occupant using his vehicle as a place of repose, he was not in APC.
Analysis:
This decision significantly refines the 'actual physical control' doctrine in Oklahoma by establishing a 'safe harbor' for intoxicated individuals who use their vehicle for shelter. It moves beyond a rigid analysis of key location and occupant presence, mandating a holistic review of the circumstances to determine the defendant's intent and the actual danger posed to the public. The case clarifies that merely having the potential to operate a vehicle is not sufficient for an APC conviction; there must be circumstantial evidence suggesting recent or imminent operation. This precedent provides a defense for individuals who make the responsible choice to 'sleep it off' rather than drive drunk, provided their actions clearly indicate they are not a public threat.
