Physical Control from the Back Seat? MN Court of Appeals Finds Probable Cause in State v. Nelson
Recently, the Minnesota Court of Appeals exploded the barriers of physical control in DWI cases. In State v. Nelson, the court reversed a probable cause dismissal by the district court when a man was found unconscious in the backseat in a WalMart parking lot with the ignition keys in the rear-passenger wheel well. Zero evidence that he drove the vehicle there while under the influence. Zero evidence that he operated the vehicle while under the influence. Zero evidence that he was actually controlling the vehicle while unconscious in the backseat without the ignition keys even in the vehicle.
How in the world did the court of appeals find probable cause for physical control in this case, you ask? It did it in two ways: (1) it cited Juncewski for the proposition that physical control should be given “the broadest possible effect”; and (2) it relied on the notion that evidence in probable cause challenges should be viewed in the light most favorable to the state and district courts should not be assessing conflicting evidence. The former reason has gotten out of control. The broadest possible effect does not mean all possible effects. When the court starts determining physical control for unconscious people in the backseat of a vehicle in a retail parking lot with the keys outside the vehicle, the bubble has burst on what physical control means. While the court in Nelson stressed it is just determining this case on probable cause and took no issue on whether Nelson was in physical control in a footnote, it sets dangerous precedent if the Minnesota Supreme Court does not grant review and reverse. The effect will be less than competent prosecutors and defense attorneys persuading people to plead guilty in physical control cases where physical control did not actually occur. Further, appellate courts will undoubtedly cite this case to support findings of physical control.
The touchstone of physical control is whether a person has the means to initiate movement of a vehicle with little effort to make the vehicle a source of danger. The distinction between a little and a lot of effort is very clear in this case. Nelson would have to wake up, exit the vehicle, grab the keys from the wheel well, enter the driver’s seat, and start the vehicle. Most physical control cases include the person being in the driver’s seat, where all they must do is wake up and start driving – which takes little effort. Minnesota courts have said that the location of the ignition key is not determinative. It is the totality of the circumstances that determines whether someone is in physical control.
Watch to see if the Minnesota Supreme Court grants review in Nelson. It has a tremendous impact on DWI cases involving physical control, whether the court in Nelson intended that to be the case or not.
Robert H. Ambrose is a criminal defense attorney and DWI lawyer in the Twin Cities and the state of Wisconsin. Super Lawyers named him a Super Lawyer for the past three years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. DWI Attorney Minneapolis MN; Criminal Defense Attorney Wisconsin; and Criminal Lawyer Minnesota.