Appeal from the Circuit Court for Harford County pursuant to certiorari to Court of Special Appeals. Cypert O. Whitfill, JUDGE
Argued Before Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, Bell, JJ.
Maryland Code (1977, 1992 Repl. Vol.), Transportation Article, § 21-902 provides that a person "may not drive or attempt to drive" a vehicle while intoxicated, while under the influence of alcohol, while under the influence of a drug or a combination of alcohol and a drug, or while under the influence of a controlled dangerous substance.*fn1 The term "drive" has several meanings, as provided for in § 11-114 of the Transportation Article: "'Drive' means to drive, operate, move, or be in actual physical control of a vehicle. . . ." The issue in the instant case is whether the appellant, who was sitting intoxicated and asleep in the driver's seat of his vehicle, lawfully parked on the shoulder of the road, with the keys in the ignition but the engine off, was properly found to be in "actual physical control" of his vehicle and thereby convicted of driving while under the influence of alcohol. Because we believe he was not in "actual physical control" of his vehicle, as contemplated by the statute, we reverse his conviction.
The appellant, Boyce Cornelius Atkinson, was arrested on March 7, 1992 and charged with common law battery and driving while intoxicated in violation of § 21-902 of the Transportation Article.*fn2 The case was tried in the Circuit Court for Harford County. Atkinson pled not guilty and consented to trial by an agreed statement of facts based on the arresting officer's police report.*fn3 In exchange for Atkinson's agreement to proceed on a statement of facts, the State agreed to nolle prosequi the battery charge and the § 21-902(a) charge of driving while intoxicated and proceed only with the lesser § 21-902(b) charge of driving under the influence of alcohol.
The statement of facts read into the record by the prosecutor was as follows:
"Your Honor, if the State were put to its burden of proof, it would produce the testimony of Harford County Sheriff's Deputy Thomas, who would testify that on March 7, 1992 at 7:00 P.M., while he was on routine patrol in the area of Abingdon Road near Route 40 in Harford County, Maryland, he observed a Jeep Wagoneer parked on the righthand shoulder of westbound Route 40.
The deputy approached the vehicle, displaying Florida registration JCG96F, and he observed the occupant to be slumped over in the driver's seat with the keys in the ignition and engine off.
The deputy attempted to get the driver's attention by knocking on the window. This action resulted in no reaction from the driver.
The deputy then opened the driver's door, which was unlocked, and shook the driver in an attempt to wake him. At this time, Deputy Thomas detected a strong odor of alcoholic beverage coming from the vehicle.
Deputy Thomas was successful in awakening the subject and while talking to the subject, noted this person's speech was slurred, eyes bloodshot and glassy. He detected a very strong odor of alcoholic beverage coming from the individual's breath.
The driver produced a Florida driver's license which identified him as Boyce C. Atkinson, whom the deputy would identify as the Defendant seated to the far left of Defense counsel in Court this morning.
Deputy Thomas requested the Defendant to perform some field sobriety tests. The Defendant did not, stating he had a broken toe on his right foot. At that time, he was placed under arrest and placed in the patrol car of the deputy.
The deputy returned to the Jeep. At this time, he went back to the patrol car and while en route to the station, along with Deputy Thomas, the Defendant fell over in the back seat of the patrol car.
At that time, the patrol car was stopped to check on Mr. Atkinson's status. Deputy Thomas observed he wasn't [sic] breathing and he had a regular pulse, but he was unsuccessful in awakening the Defendant. He transported him to Fallston General Hospital in case there was need for medical attention.
Upon arrival at the hospital, the Defendant regained consciousness and was evaluated by the Emergency Room staff. He was read his DR 15 Rights. He refused to submit to any type of tests. He was then transported back to the Harford County Sheriff's Department and issued the appropriate traffic citations.
All events occurred in Harford County, Your Honor. That would be the Statement of Facts."
Although Atkinson agreed to this statement of facts, he argued that, as a matter of law, the evidence was insufficient to convict him. He asserted that the facts did not support a finding that he had driven under the influence of alcohol in violation of § 21-902(b) because he did not "drive, operate, [or] move," his vehicle, nor was he in "actual physical control" of it. See § 11-114. After hearing arguments from both sides, the trial judge found that "the evidence [was] sufficient to conclude he was in actual physical control of the vehicle" while under the influence, and entered a finding of guilty under § 21-902(b) for driving under the influence of alcohol. He sentenced Atkinson to sixty days imprisonment, with all but fifteen days suspended, and fined him $500, with all but $250 suspended. The judge placed Atkinson on three years supervised probation with the ...