DUI without driving: What is Physical Control?
The controlling statute, T.C.A. § 55-10-401(a) provides that "[i]t shall be unlawful for any person or persons to drive or to be in physical control of any automobile or any motor driven vehicle on any of the public roads and highways of the State of Tennessee, or on any streets or alleys ... or any other premises which is generally frequented by the public at large, while under the influence of any intoxicant... ." (Emphasis added.) The plain language of T.C.A. § 55-10-401(a) suggests that the statute can be violated in one of two ways by "driving" or by being in "physical control" of an automobile while intoxicated. The courts below found that the Defendant violated the statute by being in physical control.
Defining Physical ControlJustice Daughtrey of this Court, while a member of the Court of Criminal Appeals, succinctly summarized our "physical control" cases in a 1988 unpublished opinion:
[T]here are two types of situations in which a person will be found guilty of DUI by being in "physical control" of an automobile while he or she is under the influence of an intoxicant. In both of these fact patterns, the state is able to prove, either directly or circumstantially, that the defendant possessed the automobile or had the potential means of driving. The first line of cases involves the situation in which the intoxicated driver steers an inoperative automobile that is pushed from behind by either a person or another automobile. See Hester v. State, 196 Tenn. 680, 270 S.W.2d 321 (1954); State v. Lane, 673 S.W.2d 874 (Tenn. Crim. App. 1983). The courts have concluded that, regardless of the source of the automobile's motion, its presence on the road constitutes a threat to all others when it is guided or operated by an intoxicated person. A second line of DUI "physical control" cases involves the situation in which the defendant is found intoxicated either in or beside the parked vehicle and the circumstantial evidence strongly indicates that the defendant drove to the location in an intoxicated condition. For example, in State v. Farmer, 675 S.W.2d 212 (Tenn. Crim. App. 1984), the defendant was found sitting behind the wheel of his car. The keys were in the ignition, the ignition was on, but the engine was not running. The defendant admitted that he was driving the car when the tire went flat and that he had pulled over to the shoulder where the police found him. The jury rejected his contention that he was sober while driving but drank 12 or more beers after the flat occurred. Similarly, in State v. Ford, 725 S.W.2d 689 (Tenn. Crim. App. 1986), the defendant was found asleep or passed out behind the steering wheel. The engine was still running but the car was not moving because it had struck a guardrail. In addition to being very unsteady on his feet, the defendant smelled of alcohol and several full and empty beer cans were found in his car. In Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957), the defendant drove her car off the road and hit the side of a building. A witness observed the defendant get out of the car and testified that the defendant appeared intoxicated. In each of these cases, the defendant's automobile was stationary at the time of arrest.