Actual Control (Again)

Recently, I was surprised when Division Two looked at an issue very close to (if not the same as) something I previously discussed in a post. The issue in State v. Zaragoza was “actual control,” and most of the commentary I’ve read seems to claim that the opinion narrows the term significantly. Here it is. Although I have no doubt that it’s a step in the right direction and may well assist me in future motions, I am skeptical about how positive an effect the opinion is likely to have.

Like any appellate opinion, it can be narrowed by its facts. The time line isn’t entirely clear to me, but I think the officer was on top of things as soon as the defendant got in the car. I doubt that the case will have any impact at all where officers do not see the defendant approach and get into the vehicle. After all, the opinion does nothing to prevent the inference that a defendant in a car that’s turned off drove intoxicated to the place where the officer found him. I think prosecutors will continue to do things exactly the same as they did prior to Zaragoza and argue to the jury that the defendant either intended to drive or drove drunk to get where the officer found him.

As for the subject of my previous post, operability and its relationship to actual control, I don’t think the Zaragoza will change anything. That’s because of this statement: “the legislature intended to criminalize an impaired person’s control of a vehicle when the circumstances of such control—as actually physically exercised—demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion.”

The question will be how courts interpret “as actually physically exercised.” Does that mean as exercised using that particular vehicle, or as exercised by the driver without reference to how the driver’s actions affected the vehicle? You can actually physically exercise control over an inoperable car in a manner that demonstrates an ultimate purpose of placing the vehicle in motion just as easily with an inoperable car as you can with an operable one.

I hope Zaragoza will make some kind of difference, but I’m not holding my breath.