What does "Actual Physical Control of a Vehicle" mean ?
The phrase "actual physical control" as set forth in 21 Del. C. § 4177 was recently defined in State v. Bodner, Del. Supr., 752 A.2d 1169 (2000).
There, the Delaware Supreme Court when approving a Superior Court's jury instruction defined such as meaning; "exclusive physical power and present ability to operate, move, park or direct whatever use or non-use was to be made of the motor vehicle at the moment." Relying upon State v. Purcell, Del. Super., 336 A.2d 223, 226 (1975).
The Court however further explained that under the statutory scheme, it is also clear a person can have actual physical control of a vehicle "without either operating or driving the vehicle." Id. t 1173.
The Court in Bodner outlined a number of relevant factors to be considered to determine whether a person is in actual physical control.
Such factors are "the defendant's location in or by the vehicle, the location of the ignition keys, whether the defendant had been a passenger before the vehicle came to rest, who owned the vehicle . . . "Id. at 1174. Another key concept to consider is whether the vehicle "was or could become a danger to persons or property while the defendant was under the influence of alcohol." Id