美国法律英文备忘录

Memorandum

To: Martha Marples

From: Yang Li

Re:“driving” under the influence of alcohol

Date: unknown

Robin Shymite,our client, he has decided to drive the car after drunk 2 or 3 bears, but failed to drive as he feel too tired to drive, and then sleep in the driver’s seat. The police officer approached the car and insisted that he had the alcohol test, then the policeman put him in jail. One day later, his friend arranged for his release, and our client worried about he will lose the medical license if convicted of driving while intoxicated.

Issue: Does Shymite’s conduct constitute “driving” the car while intoxicated because he admitted he drink bears and decided to drive home when leaving the bar, though he did not actually drive the car away, but sleep instead.

Short Answer: Shymite’s conduct probably not constitutes a driving under the influence of alcohol and his action has not violated RSA 265:82, as he turned off the engine and decided not to drive the car before falling asleep. Shymite is passive and is not immediately going to control the car, rather than using the car for a rest.

Facts: Shymite drunk two or three bear in the local bar. When leaving the bar, Shymite decided to drive home, but before moving the car, he realized that he was too tired to drive. He turned off the engine. However, he left the keys in the ignition so that he could listen to the radio while resting. Approximately one and half hour later, the policemen found him in the car and woke him up. The policeman insisted he was fialed the alcohol test and put him in jail.

Discussion:

RSA 265:82 No person shall drive or attempt to drive a vehicle upon any way: (a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or (b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.

“Dr iving” for purposes of RSA 265:82 means operating or having actual physical control of the vehicle.If the defendant had started his car before falling asleep—if so, then he was in actual physical control while awake and in the driver’s seat. The court says that the word “drive” does not necessarily mean “operate.” The court says that if the occupant of the car is totally passive and has not actively tried to control or is not imminently going to control the car, then that occupant should not be penalized by the

law. State v. Willard, 660 A.2d 1086 (N.H. 1995) (June).

“Driving” for purposes of RSA 265:82 means actual physical control of the vehicle. “Actual physical control” varies according to the facts of the case, but when it is reasonable to assume that the defendant will be imminently operating a vehicle rather than using the vehicle for stationary shelter, the defendant will be found to be in actual physical control. State v. Holloran, 669 A.2d 800 (N.H. 1995) (December)

In Williard case, the vehicle’s engine was idling, and the defendant was asleep. The court holds that if the defendant had started his car before falling asleep, he was in actual physical control while awake and in the driver’s seat. Just like the Williard, Shymite also started the car before falling asleep. His action also constitutes the actual physical control of the car. However, unlike Williard case, in this case, Shymite turned off the engine instead. Shymite has decided not to drive the car and he turned off the engine, according to this action, it is reasonable to believe Shymite is merely using the car for resting rather than driving home. Hence, though like the Willard, Shymite was in actual physical control of the car, but he is not attempt to drive the car.

In Holloran Case, the court holds that the defendant was driving and in actual physical control of his vehicle when found sitting behind the wheel, the keys in the ignition, the vehicle parked, and engine and lights off. Just like the Holloran Case, Shymite also left the key in the ignition. However, unlike Holloran Case, Shymite turned off the engine before falling asleep, and he left the key only for listening the radio while have a rest. Shymite was only using the car for shelter, and his conduct cannot constitute the actual physical control of the car. Hence, his action does not constitute a RSA 265:82 violation.

Prediction

Shymite’s conduct does not constitute a RAS 265:82 violaion. In this case, Shymite does not actually operate the car, and also not going to start the car. Provided the facts show that Shymite has changed his mind and decided not to drive instead. Hence, he did not attempt to drive the car, but stay in the car for a rest. He has turned off the engine and left the key in the ignition only for radio listening. He shall not be convicted of driving while intoxicated.