Minnesota court: You needn't be driving to be guilty of DWI

Daryl Fleck was drunk and asleep in his car in the parking lot of his Crookston apartment building when someone called police.

Officers who responded that night in 2007 saw his car keys on the console between the front seats, but found no evidence that Fleck, who was parked in his assigned spot, had recently driven.

Nonetheless, Fleck was convicted of drunken driving, and on Tuesday, the Minnesota Court of Appeals upheld that conviction in a decision that serves as a reminder that a person can be guilty of drunken driving without having driven.

The appeals court said that Fleck's keys were "readily available to him," and there was no evidence he was in the car to do something other than drive. That he may not have intended to drive is "immaterial," the eight-page decision said.

Fleck's lawyer G. Tony Atwal, an assistant state public defender, said that when police came, Fleck didn't know where the keys were. Court papers said Fleck initially told police he went to the car to retrieve something, then decided to sit in the car.

State law says that any person who drives, operates or is in "physical control" of a motor vehicle with a blood-alcohol concentration of more than 0.08 percent is guilty of a crime. Testing of Fleck showed an alcohol concentration of 0.18 percent, the court said.

The court cited a 1992 ruling saying that "physical control" includes situations where a drunk person is found in a parked vehicle that might be started and driven.

In trying to overturn Fleck's conviction, Atwal cited a 1984 case from Falcon Heights in which a man was found asleep in his car in his driveway at 3 a.m. He went there after a fight with his girlfriend, the court said. The difference was there was no evidence the keys were in the car.

Fleck argued that the facts of his case were similar, but the court disagreed, saying the keys "were readily available to him," putting him in "physical control" of the vehicle.

Atwal said he had not spoken to Fleck, 55, about the ruling and said they might ask the state Supreme Court to hear the case. He said Fleck has been released from custody after serving his time in an intensive program that included treatment. Fleck had three prior drunken driving convictions.

Other lawyers say the ruling is consistent with previous decisions.

"The real issue is whether or not he was in position to immediately move the vehicle," defense lawyer Bruce Rivers said. A couple of years ago, Rivers had client who was charged with drunken driving when police found him standing outside his car, holding his keys and the door handle.

Rivers said the charges eventually were dropped. "That's about as close as you can get without being in physical control" of the car, Rivers said.

Defense lawyer Joseph Tamburino said legally being in "physical control" of the vehicle is the same as driving. "I don't like the law, but I don't ever see it changing," he said, pointing to the anti-drunken driving lobbyists and support for the current law from the Department of Public Safety.

Stearns County Attorney Janelle Kendall, also president of the Minnesota County Attorneys Association, said Tuesday's ruling is consistent with the law and public safety. "The point behind the physical control law is they could take off with it at any time," she said.

Sharon Gehrman-Driscoll, director of Minnesotans for Safe Driving, said the law makes sense. "If they're in the car, you can get a hold of the keys," she said. "How can you distinguish between a person who's going to wake up and take off and go kill a family or is going to sleep if off?"

Rochelle Olson • 612-673-1747