Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota Case of the week is the Minnesota Supreme Court case of State v. Fleck, _N.W.2d _ (Minn. 1/21/2010).

Mr. Fleck is an alcoholic who managed to rack up 4 DWI's within 10 years making him eligible for felony prosecution.  What is interesting about his current case is that while he  made no attempt to stop drinking, he still managed to get convicted even though there wasn't any proof that he was ever driving or operating the motor vehicle.  You would think that a man with his experience with the legal system would know about the "physical control"  portion of the DWI statute, but perhaps he is just a slow learner.

The facts, as noted by the Court, are: "At 11:30 p.m. on June 11, 2007, police officers responded to a call from a concerned citizen who saw a man unconscious in her apartment complex parking lot in the driver's seat of a vehicle with its door open.  The officers found Fleck asleep behind the wheel of his vehicle, which was legally parked in an assigned space at the apartment building where he lived.  After being awakened by the officers, Fleck admitted to drinking 10 to 12 beers, but denied that he had been driving the vehicle.  When asked why he was in the vehicle, Fleck initially told the officers that he had come to retrieve an item from the vehicle but later told the officers that he had come outside to sit in the vehicle.  The officers concluded that Fleck had not recently driven the vehicle because the vehicle was 'cold to the touch', the lights were not on, and it did not appear that the vehicle had been running.  However...the officers did observe a set of ignition keys in the vehicle console between the driver and passenger seats.  The officers also concluded that Fleck was intoxicated based on observing Fleck's bloodshot and watery eyes, slurred speech, poor balance, disheveled look, and the smell of alcohol emanating from him.  Subsequent testing showed that Fleck had a blood alcohol concentration of .18" (Opinion p.1-2).

"Minnesota law provides that it is unlawful for 'any person to drive, operate or be in physical control of a motor vehicle' while under the influence of alcohol or with an alcohol concentration of .08 or more. Minn. Stat. § 169A.20, subd. 1(1), (5).  The term 'physical control' is more comprehensive than either the term to 'drive' or to 'operate'."

In Fleck,  the Court noted that, "physical control is meant to cover situations when an intoxicated person, is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.  State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Thus a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle, and he is in close proximity to the operating controls of the vehicle. Id."


The Fleck opinion goes on to state, "the purposes underlying the offense of being in physical control of a motor vehicle while under the influence is to deter intoxicated persons from getting into vehicles except as passengers and to act as a preventive measure to 'enable the drunken driver to be apprehended before he strikes' (citation omitted). The offense, however, is not intended to cover situations in which an intoxicated person is a passenger, having relinquished control of the vehicle to a designated driver." (emphasis added).

The Court notes that "mere presence in or about the vehicle is insufficient to show physical control; it is the overall situation that is determinative." The factors to be considered in determining whether a person is in physical control of a motor vehicle include: "the person's location in proximity to the vehicle; the location of the keys; whether the person was a passenger in the vehicle (which from the court's language above would give you a free pass), who owned the vehicle and the vehicle's operability." (Opinion p.5)

The Fleck Court then states that the "intent to operate" is not an element of the physical control DWI statute. (Opinion p.6) This statement appears to be inconsistent with the court's exemption of passengers from prosecution.  A passenger is ensconced in the vehicle and is presumably in close proximity to the controls, the keys etc.  But since a passenger, by definition, has no intent to drive the vehicle, they are exempt from prosecution even though "intent to drive or operate" is not an element of physical control.

I do not disagree that passengers should be exempt from prosecution.  After all, drunks have to get home somehow.  And if you have the foresight to take a cab or obtain a designated driver then you should not be subject to prosecution, if say, your driver stops at the local Quik Trip and leaves you in the front seat of the vehicle with the motor running while he peruses the late night delicacies available at all 24 hour markets! Why? Because you as a passenger had absolutely no intent to drive or operate the motor vehicle.

So if the "lack of intent" serves to protect the passenger, why isn't that defense available to those whose status within the vehicle is less clear.  Say perhaps Mr. Fleck, who only went to the vehicle to retrieve an item or to simply enjoy the pleasure of the vehicle's rich corinthian leather.  If the jury does not buy the defendant's story; that's fine. But the intent of the party should be a factor in the Supreme Court's analysis of the totality of the  circumstances creating "physical control".

MORAL OF THE STORY: If you are drunk, never get in a motor vehicle unless you are a passenger with proof of a designated driver.

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

F.T. Sessoms, Minnesota DWI Attorney