BEING IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE
WHILE UNDER THE [COMBINED] INFLUENCE OF
ALCOHOL/(AN INTOXICATING SUBSTANCE) - ELEMENTS
No person may be convicted of being in actual physical control of a motor vehicle while under the influence of alcohol/(an intoxicating substance) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, being in actual physical control of a motor vehicle;
Second, on a (public road/street/highway/turnpike/street/place)/(private road/street/alley/lane which provides access to one or more single or multi-family dwellings);
Third, (while having a blood/breath alcohol concentration of 0.08 or more)/(while under the influence of alcohol)/(while under the [influence of any intoxicating substance other than alcohol]/[combined influence of alcohol and any other intoxicating substance] which may render a person incapable of safely driving a motor vehicle);
[Fourth, the blood/breath alcohol test was administered within 2 hours after arrest).]
Statutory Authority: 47 O.S. 2011, § 11-902. See also 47 O.S. 2011, § 11-101.
Notes on Use
The Fourth Element should be read only for prosecutions under 47 O.S. 2011, § 11-902(A)(1).
Although section 11-902(A) uses the language "drive, operate," the Court of Criminal Appeals has indicated that "drive" and "operate" are synonymous. Bearden v. State, 1967 OK CR 133, 430 P.2d 844; Parker v. State, 1967 OK CR 7, 424 P.2d 997.
It should be emphasized again, however, that the words "actual physical control" are not synonymous with "drive." The Court of Criminal Appeals has stated that, by adding the words "actual physical control," the Legislature intended to apply the law to persons who control a vehicle but who may not have put the vehicle into motion. A Montana case, State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958), involving an identical statute is cited as illustration. In Ruona, the defendant was found intoxicated behind the wheel of a vehicle with the motor running, but no evidence could be adduced that the defendant had driven the vehicle. The Oklahoma court indicated that the defendant could not have been convicted of driving while under the influence but could be convicted of being in actual physical control while under the influence. See also Wofford v. State, 1987 OK CR 148, 739 P.2d 543 (defendant was sleeping in driver's seat); Kyle v. State, 1986 OK CR 117, ¶ 7, 722 P.2d 1218, 1219 (evidence that defendant exited vehicle on the driver's side was sufficient for inference of actual physical control); Mason v. State, 1979 OK CR 132, ¶ 6, 603 P.2d 1146, 1147 (defendant was unconscious behind the steering wheel of a vehicle with its engine running); Hughes v. State, 1975 OK CR 83, 535 P.2d 1023 (defendant was unconscious behind steering wheel); Cudjoe v. State, 521 P.2d 409 (defendant was asleep behind wheel); Crane v. State, 1969 OK CR 267, 461 P.2d 986; Parker v. State, 1967 OK CR 7, 424 P.2d 997.
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