Asleep at the wheel

Is anger over a recent drunk driving conviction in Minnesota misplaced?

And you thought your hangover last weekend was painful. When Daryl Fleck , now 55, came to after some drinks one night in 2007, his wakeup call came courtesy of the Crookston Police at 11:30 p.m. He had passed out behind the wheel of his car. But Fleck wasnâÄôt driving. He fell asleep in his car while it was parked in the parking lot of his Crookston apartment building. A concerned citizen apparently noticed him and contacted local law enforcement. His car keys were on the console between the two seats, and according to the published opinion from the Minnesota Court of Appeals, there was no evidence that Fleck had recently driven the vehicle. FleckâÄôs story was that he had been drinking at home and had come out to his car to retrieve something. He later told the cops that he had simply come out to sit in the car. Apparently, the police were not convinced. They arrested Fleck and charged him with two counts of driving while impaired and for being in physical control of a motor vehicle with an alcohol concentration of 0.18 percent. He was convicted by a jury and sentenced to 48 months in prison. Ironically enough, you donâÄôt have to be âÄúdrivingâÄù to be convicted of driving while intoxicated here in the Land of 10,000 Lakes. Minnesota Statute 169A.20 states, in pertinent part, âÄúIt is a crime for any person to drive, operate or be in physical control of any motor vehicle âĦ when the person is under the influence of alcoholâÄù or âÄúwhen the personâÄôs alcohol concentration âĦ is 0.08 or more.âÄù Fleck and his public defender argued that simply being alone, intoxicated and asleep behind the wheel of an operable motor vehicle with the keys on the console isnâÄôt actually being âÄúin physical control of the motor vehicle,âÄù and therefore he shouldnâÄôt have been convicted under the Minnesota law. Unfortunately for Fleck, the Minnesota Court of Appeals disagreed. They ruled that FleckâÄôs use of the vehicle âÄúwas not inconsistent with driving the vehicleâÄù since the keys were readily available to him. His conviction was upheld. ThereâÄôs been quite the hullabaloo raised over this decision since it was filed on March 24. The esteemed editorial board of this very paper weighed in with a March 25 piece calling the opinion âÄúdownright tyrannical law.âÄù When the story ran on the Star TribuneâÄôs website , the hundreds of reader comments ranged from anger over MinnesotaâÄôs âÄúactivist courtsâÄù to disconcerting conclusions that inebriated folks might be âÄúbetter off driving drunk.âÄù I have to admit, my initial reaction was similar to those above. I thought to myself, âÄúGee, wouldnâÄôt it be better policy to encourage those too plastered to drive to sleep it off in their car rather than to endanger the general public by driving?âÄù But before dismissing the case as the product of power-mongers in long black robes, there are a few factors to consider. First of all, Fleck was convicted by a Polk County jury. Judge Terri Stoneburner and the other two judges on the panel that upheld the conviction didnâÄôt decide Fleck was guilty of DWI, they just decided that, based on the evidence in the court record, they couldnâÄôt overturn his guilty verdict, which was determined (in theory) by 12 ordinary Minnesotans. Another thing to consider was that this wasnâÄôt some kind of extreme change in the interpretation of MinnesotaâÄôs DWI law. In a 1987 case, the court of appeals said that a âÄúperson is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle.âÄù In a 1992 case, the Minnesota Supreme Court said that âÄúphysical control is meant to cover situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might again be started and become a source of danger to the operator, to others or to property.âÄù The 1992 opinion also said that âÄúthe term âÄòphysical controlâÄô should be given the broadest possible effect and that the intent was to deter inebriated persons from getting into vehicles except as passengers.âÄù This interpretation of MinnesotaâÄôs DWI law has been in place for 17 years now, and since itâÄôs a Supreme Court ruling, the court of appeals is required to follow its example. So, if the court were to take FleckâÄôs side in this case they would have to buck the decisions of the stateâÄôs highest court and the citizen jury, two things that shouldnâÄôt be taken lightly. Since the Minnesota Supreme Court has pretty clearly decided how the stateâÄôs current DWI laws will be interpreted, it would seem like the ball is actually in the court of the Minnesota Legislature. They could simply rewrite the stateâÄôs statute to more clearly define what âÄúphysical controlâÄù really means, or they could add a sentence to indicate that the stateâÄôs drunk-driving penalties shouldnâÄôt apply to those who arenâÄôt conscious, or to those who havenâÄôt put a key in the ignition. There are other factors to be taken into consideration. Fleck wasnâÄôt exactly a model citizen. His blood-alcohol level was over twice the legal limit. Police found multiple open beer cans under a blanket in the passenger seat. He changed his story about why he was in the car in the first place. He also had three prior drunk-driving convictions. There are also reasonable policy arguments to be made in favor of the harshest possible interpretation of the stateâÄôs DWI laws. WeâÄôve all heard enough stories of senseless death at the hands of drunk drivers to recognize that. For those still mad about the decision, consider the beauty of democracy. If you found this decision irksome, you are not powerless. You can call your legislator, organize your neighbors and lobby Congress to rewrite the laws to teach these rogue judges a lesson. If enough people agree with you, you can change the rules and loosen the restrictions of MinnesotaâÄôs DWI law. Good luck. Jake Parsley welcomes comments at [email protected]