"No hands": reevaluating what control is necessary to establish actual physical control following State v. Nekolite.

• Author: McNulty, Kimberly B.
• Position: Case overview

In State v. Nekolite, the South Dakota Supreme Court found the defendant lacked "actual physical control" when he manipulated his vehicle's gear shift while intoxicated, causing the vehicle to roll forward and damage another's property. The majority opinion held that the defendant did not exert the control necessary to operate a vehicle "in the usual and ordinary manner. " In so holding, the court relied on its definition of actual physical control set out in South Dakota Pattern Jury Instructions, which effectively added elements to South Dakota's drunk driving statute. The dissenting opinion argued that such an interpretation violated the rules of statutory construction. Further, the dissent argued that Nekolite aligned with prior case law because of the defendant's control of the vehicle's gear mechanism, regardless of whether the defendant was seated behind the steering wheel, and satisfied the statute's broad interpretation. In conclusion, the dissent found that the court abandoned public policy considerations that operate to prevent impaired drivers from getting behind the wheel.

1. INTRODUCTION

   "Impaired driving not only puts the driver at risk.... [I]t threatens the lives of passengers and all others who share the road, and every year it causes the deaths of thousands of loved ones." (1)

   Driving under the influence of alcohol or other intoxicants has "one of the highest arrest rates" among major crimes in the United States. (2) An estimated 1.5 million people are arrested each year for either drunk driving or being in actual physical control of a vehicle while intoxicated. (3) In 2015 alone, the State of South Dakota saw 6,190 driving under the influence arrests. (4) Throughout the nation, "[t]he necessity for stringent drunk driving laws has received widespread and nearly unanimous support in an increasing crescendo [over] the last several decades." (5)

   Efforts to criminalize drunk driving has typified American policy since the advent of the automobile. (6) In the early twentieth century, state and local lawmakers passed legislation that made alcohol-induced driving illegal. (7) The first Driving Under the Influence ("DUI") law emerged in 1910 in New York. (8) Shortly thereafter, all states enacted laws against drinking and driving. (9) By the fifties, as a result of suburbanization and the creation of an interstate highway system, the infusion of autos became a permanent fixture in American life. (10) Driving quickly developed into a ubiquitous enterprise, which made the interdiction of drinking and driving even more imperative. (11)

   In the 1970s, drunk driving garnered increased public attention, even though the issue remained a low priority on many political agendas. (12) Heightened social consciousness of "the drinking-driving problem" soon translated into harsher legislation and law enforcement efforts. (13) States increased punitive measures for persons who violated DUI laws "and made apprehension and conviction of offenders easier." (14) Soon after, the laws dedicated to traffic safety shifted focus to controlling the motorist, which required motorists to obey driver's licensing, posted speed limits, and directives against driving or being in actual physical control of a vehicle while intoxicated. (15) Enforcement of these laws dominated public efforts to limit and regulate drunk driving. (16) Overall, the hallmark of these laws--which criminalized the intoxicated motorist--concentrated on deterrence and punishment. (17)

   By the 1980s, legislators could no longer ignore the lethal and often devastating consequences of drank driving. (18) A major counterattack against intoxicated motorists, led by activist groups such as Mothers Against Drank Drivers ("MADD"), contributed to a modern sentiment that drank driving or actual physical control was a "serious criminal act" that required severe punishment. (19) It was at this time that drank driving leapt to the "top of the nation's political agenda," and legislators of nearly every state began enacting tougher laws. (20) Between 1970 and 1986, "arrests for drunken driving rose by 223 percent." (21)

   Since the anti-drunk driving movements of the 1980s, aggressive opposition to drank driving and actual physical control "evolved into a national moral crusade and a multifaceted sociolegal agenda." (22) Drank driving laws were rooted in criminal justice principles of retribution, reform, incapacitation, and deterrence. (23) These principles helped define the public policy of drank driving laws today. (24) Criminal penalties provide a basis for sanctioning offenders, while deterrence more broadly threatens "swift, certain, and severe" punishment for potential offenders. (25)

   Today, drank driving remains a universal public safety and health concern. (26) It is not an arbitrary phenomenon. (27) The effects of drank driving, or being in actual physical control while intoxicated, are both visible and real. (28) For cases like State v. Nekolite, (29) these historical and policy considerations impact the application of South Dakota's drunk driving law. (30)

   The following article begins with a discussion of the facts and procedure of State v. Nekolite. (31) Next, the article traces the historical underpinnings that led states like South Dakota to enact drunk driving laws, which proposed definitions of "actual physical control." (32) The article then analyzes the implications of the court's decision in Nekolite, namely addressing what type of control is necessary to establish actual physical control. (33) Finally, the article addresses the practical considerations the Nekolite decision will have on South Dakota's drunk driving law, particularly the policy concerns upon which the statute was enacted. (34)

2. FACTS AND PROCEDURE OF STATE V. NEKOLITE

   1. FACTUAL BACKGROUND

      On the evening of September 15, 2012, Donald Leon Nekolite drove his girlfriend, Jill Cameron, to a dance in Battle Creek, South Dakota. (35) Cameron was the designated driver for the night, while Nekolite drank heavily. (36) At one point during the evening, Nekolite went outside to his truck to grab a cigarette. (37)

      Once outside, Nekolite opened the passenger side door of his truck and slumped his body up and across the front seat to grab a package of cigarettes. (38) As Nekolite reached for the cigarettes, the pack dropped to the ground on the driver's side floorboard, near the pedals. (39) In his attempt to reach the cigarettes, Nekolite's arm struck the gear shift, causing the car to shift into neutral. (40) The truck rolled backwards down a hill and into a parked vehicle. (41) The truck's engine was not running, and the keys were located on the dashboard. (42)

      McCook County Chief Deputy Sheriff, Matt Bormann, was dispatched to the accident. (43) Upon arrival, Sheriff Bormann observed an intoxicated Nekolite seated in the driver's seat. (44) Following arrest, Nekolite was charged under S.D.C.L. section 32-23-1 with "driving" or being in "actual physical control" of a vehicle while intoxicated. (45)

   2. LOWER COURT PROCEEDINGS

      In a bench trial, the magistrate court found Nekolite guilty of being in actual physical control of his vehicle while under the influence of alcohol. (46) The court based its finding of guilt on the language pronounced in State v. Kitchens, (47) which provided: [A]ll that is necessary to establish actual physical control' is a 'showing that the vehicle was operable and the defendant was in a position to manipulate the controls which would cause it to move.'" (48) To the court, Nekolite's admission of reaching into the vehicle and striking the gear shift constituted "manipulat[ing the vehicle's] controls" which caused it to move. (49) On appeal, the circuit court affirmed Nekolite's conviction. (50)

   3. THE SUPREME COURT OF SOUTH DAKOTA

      1. The Majority Opinion

         In a 3-2 split, the majority opinion, authored by Justice Zinter, reversed the lower courts' decisions and found that Nekolite's conduct did not constitute actual physical control. (51) In so holding, the majority relied on an explanatory definition of "actual physical control" as defined in South Dakota Pattern Jury Instruction 3-10-10. (52) Since 1984, the court has applied the jury instruction as an explanatory definition of the statute's language. (53) The majority reasoned that the absence of legislative change indicated legislative approval of the instruction. (54)

         The majority found that the lower court failed to apply the jury instruction that required proof of the defendant's ability to operate his vehicle in its usual and ordinary manner. (55) According to the majority, the instruction delineates three elements necessary to prove the defendant was in actual physical control of the vehicle. (56) First, the defendant's vehicle must have been operable. (57) Next, the defendant's position must enable him to manipulate the vehicle's controls that would cause or affect its movement. (58) Finally, the third element requires that the defendant's control enable him "to actually operate the vehicle in the usual and ordinary manner." (59)

         To the majority, the lower court misinterpreted Kitchens as only requiring the first and second elements. (60) The court held that while the vehicle was operable and Nekolite was in a position to manipulate control, Nekolite did not fulfill the third requirement necessary to establish actual physical control. (61) In its decision, the court reasoned that the principles underlying actual physical control provide guidance in that the statute serves to protect the safety and welfare of the public. (62) Thus, in effect, the statute aims to deter intoxicated drivers from getting behind the wheel. (63) The court maintained that South Dakota's actual physical control statute is "nearly identical" to North Dakota law set out in City of Fargo v. Theusch, (64) which requires a broad prohibition of "any exercise of dominion or control over a vehicle by an intoxicated person." (65)...