Mester v. State
In Mester v. State, 755 So. 2d 66 (Ala. Crim. App. 1999), the Court of Criminal Appeals held that the defendant Mester had been in "actual physical control" of the vehicle in which he was seated when the law-enforcement officer approached him.
In that case, Mester testified to this effect: That after he had consumed a few beers one evening, his sister came to his home and woke him up, telling him that his daughter's Mazda RX7 motor vehicle had stalled at a gasoline station; that they went to the station to help the daughter with her car; that Mester purchased some cigarettes inside the station and saw a deputy sheriff inside the store; that while he was inside the store, another man attempted to push the RX7, in an attempt to get it started; that the daughter was seated behind the steering wheel at the time; that the vehicle came to a rest on the side of a highway; that Mester then joined the group and told the others to find a chain so that they could tow the car home; that as his sister and his daughter left to find a chain, the deputy sheriff approached Mester, determined that the car would not start, and arrested Mester for driving under the influence.
The deputy sheriff testified that he had been inside the station and that as he was returning to his car, he watched as another car pushed the RX7 onto the highway; that he saw both vehicles, especially the RX7, "swerving all over the road"; that he determined the vehicles "were unsafe" and activated his blue light and pulled both vehicles over; that Mester was behind the steering wheel of the RX7 at the time; that Mester smelled strongly of alcohol, had slurred speech and bloodshot eyes and was off balance; and that he arrested Mester after he failed a field sobriety test. See Mester, 755 So. 2d at 68.
Mester argued that because the RX7 would not start, he had no present ability to operate it; thus, he argued, he could not be guilty of driving under the influence. In affirming Mester's conviction, the Court of Criminal Appeals stated:
"Disposition of this issue seems apparent after looking at the facts. As Mester stated in his brief, a 'source of propulsion' had been provided for the RX7 and it was moving down a public roadway. As the RX7 was being pushed to its destination, Mester sat behind the wheel 'driving' or guiding its direction and applying the brakes when necessary. Thus, Mester was in the driver's seat, behind the wheel, determining the direction and speed (there was no evidence that the brakes did not work) of the RX7. It seems obvious that Mester was in actual physical control of a vehicle and that he had the present ability to move the vehicle.
"We concede that there is no reported case exactly on point in Alabama; however, as authority for the proposition that Mester was in actual physical control of his automobile, there are several cases from other jurisdictions whose DUI statutes are similar to Alabama's. These cases note, as the Colorado Supreme Court stated, that 'it is not a requirement that the vehicle be moving on its own power, or that the vehicle travel a particular distance' in order to conclude that a defendant was in 'actual physical control' of the automobile. Colorado Div. of Rev. v. Lounsbury, 743 P.2d 23, 27 (Colo. 1987).
"'Other jurisdictions have addressed factual situations in which a vehicle was being towed or pushed, and concluded that such actions constituted driving a vehicle under similar DUI statutes. See State v. Roberts, 139 Me. 273, 29 A.2d 457 (1942) (when car was being towed up an icy grade, in gear with engine running, and intoxicated defendants took turns sitting behind wheel, held to constitute operating a motor vehicle even though the car's front wheels were raised off the ground); Commonwealth v. Kallus, 212 Pa. Super. 504, 243 A.2d 483 (1968) (when motorist was in driver's seat of car stuck in a snowbank, in gear with engine running, and other people were attempting to push car out of the snowbank, held to constitute operation of a motor vehicle); Hester v. State, 196 Tenn. 680, 270 S.W.2d 321 (1954) (when automobile was being steered by an intoxicated person but the engine was not running and another vehicle was pushing it, held to constitute physical control of a motor vehicle under drunk driving statute); Chamberlain v. State, 163 Tex. Crim. 529, 294 S.W.2d 719 (1956) (when intoxicated motorist was steering his car and the engine was not running, but he was being pushed on the highway by another car, held to constitute operating a motor vehicle); State v. Tacey, 102 Vt. 439, 150 A. 68 (1930) (when intoxicated operator was steering automobile while it was being towed, held to constitute operating a motor vehicle); Gallagher v. Commonwealth, 205 Va. 666, 139 S.E.2d 37 (1964) (when car was stuck and intoxicated operator was accelerating the engine but unable to get vehicle out of ditch, held to constitute operating the vehicle). Compare People v. Kelley, 27 Cal. App. 2d Supp. 771, 70 P.2d 276 (1937) (based on these particular facts, when defendant moved his "nearly demolished" car by having others push it a few feet to a safe location out of the traffic flow, held not to constitute driving under the statute). See generally Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A.L.R.3d 7 (1979).'
" 743 P.2d at 26-27; see Harris v. State, 97 Ga. App. 495, 103 S.E.2d 443 (1958) (vehicle pushed by another car, then coasted down street without engine running, held to constitute operating a motor vehicle), overruled on other grounds, Luke v. State, 177 Ga. App. 518, 340 S.E.2d 30 (1986); State v. Ferrenti, 1 Conn. Cir. Ct. 108, 22 Conn. Supp. 494, 175 A.2d 378 (1961) (defendant's being behind steering wheel of disabled automobile, which was being pushed along highway by another vehicle, held to constitute operating a motor vehicle); People v. Heimann, 142 Ill. App. 3d 197, 491 N.E.2d 872, 96 Ill. Dec. 593 (1986) (intoxicated defendant's being behind the wheel of inoperative automobile attempting to start it was held to constitute his being in control of vehicle)." (Mester, 755 So. 2d at 69-71.)
In Mester, the Court of Criminal Appeals appears to have based its decision on the key fact that the officer testified that Mester was steering the vehicle when he was pulled over.