Being drunk and asleep at the wheel of his car while it was parked in his apartment lot with the keys on the console was sufficient evidence to convict a Crookston man of drunken driving, the Minnesota Supreme Court ruled unanimously Thursday.

In a seven-page decision, Justice Alan Page said the jury could reasonably conclude that Daryl Fleck was in "physical control" of his vehicle when arrested.

Fleck's appellate lawyer, G. Tony Atwal, an assistant state public defender, disagreed with the ruling. "Presumably, if you're in or about your car, the county attorney could now charge you with a physical control DWI," Atwal said.

In 2007, Fleck was drunk and asleep in his car with the driver's door open in the assigned parking spot at his apartment building when someone called police. He got his fourth drunken-driving conviction and was sentenced to four years in prison. The state Court of Appeals affirmed his conviction, setting up the appeal to the Supreme Court.

Atwal said he pushed the appeals because there was no indication Fleck had driven; the engine was cold, and the car wouldn't even start when an officer tried it. If the car had been by the side of the road, it would have been very different, Atwal said.

The Supreme Court resoundingly disagreed.

Page emphasized that the law says "physical control of a motor vehicle" in an attempt to deter intoxicated people from getting into cars except as passengers and to help nab drunken drivers.

"Mere presence in or about a vehicle is insufficient to show physical control; it is the overall situation that is determinative," he wrote.

He acknowledged that Fleck's circumstances were not typical for a "physical control" drunken-driving offense because the jury couldn't infer Fleck drove to the spot where he was found.

But a jury could reasonably determine that "Fleck, having been found intoxicated, alone, and sleeping behind the wheel of his own vehicle with the keys in the vehicle's console, was in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger," the justice wrote.

Page said that in evaluating whether someone has control, the courts and juries consider a number of factors: proximity to the car, the location of the keys, whether the person was a passenger, the ownership of the car and whether it was operable.

He cited a case in which the state Supreme Court reinstated the drunken-driving charge of a person found behind the wheel of a car that was stuck and couldn't be moved without a tow truck. Page said the court determined that "intent to operate" isn't a requirement for finding that someone was in "physical control" of the vehicle.

Fleck remains in treatment and under court supervision, Atwal said.

Steve Simon, a University of Minnesota law professor and head of the DWI Task Force, said arrests such as Fleck's are so common the suspects have a name: "slumpers." He said that more often police find drivers passed out at a stoplight or parked by a roadside.

He said state law broadly defines "physical control" because "you don't want people to get into a car if they've been drinking." In one case, a person got a drunken-driving charge because he was steering an inoperable car that was being towed, Simon said.

In another Minnesota case, a man was drinking at home, then went to listen to the high-end stereo in his new SUV parked outside. Simon said neighbors called police about the noise, and the man ended up with a drunken-driving charge and an impounded vehicle.

Rochelle Olson • 612-673-1747