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Compendium
Superior Court Cases

Issues Regarding Actual Physical Control of MV
 
Referenced By Hearing Date: 2007 | 2004 | 2003 | 2002 | 2001 | 2000 |
1999 | 1998 | 1997 | 1996 | 1995 | 1993 | 1994 | 1992
 
Elmaaergi v. Director, 216-2010-CV-00566, (Abramson, 1/28/11), AFFIRMED
ALS refusal. Petitioner argued that he did not have a sufficient interpreter and that the Hearings Examiner erred by concluding that he was the driver of the vehicle based on Petitioner and his witnesses' testimony that he was not the driver. More than sufficient evidence for Hearings Examiner to conclude Petitioner was driver. Interpreter sworn in at hearing and the Petitioner's witness testified as to Petitioner's statements in English at time of incident.
Giampietro v. Beecher, 215-2010-CV-00182, (Vaughan, 11/30/10), AFFIRMED
ALS appeal. Issue operation or physical control of vehicle. Officer approached and observed respondent behind wheel of running vehicle in parking lot. Vehicle lurched forward and struck snow bank. Petitioner stated that he was only using the vehicle to light a cigarette and that he needed to start vehicle to operate lighter. Petitioner argued that he was not in actual physical control of vehicle because he was using it as a stationary shelter and the Hearings Examiner incorrectly drew a negative inference from refusal to do field sobriety tests and a chemical test. Court held reasonable for Hearings Examiner to conclude actual physical control, especially since Petitioner was awake. Petitioner's intention irrelevant because he was in control of vehicle. Negative inference permissible since ALS civil case, and any error in doing so was harmless.
Adrignola v. Beecher, 08-E-0289, (Belknap, McGuire, 03/30/09) AFFIRMED
ALS refusal. Petitioner argued discovery violation due to booking video not being provided before the hearing, public way, insufficient evidence of reasonable grounds of operation, and that he did not refuse. Hearings Examiner denied motion to continue for discovery. Court upheld for the reasons contained in the state's brief.
Theodore v. Beecher, 07-E-0162, (N. Hillsborough, Abramson, 10/12/07) AFFIRMED
Petitioner claimed the evidence was not sufficient to establish that he was the operator because the truck was silver not white and that the officer lost sight of it and did not see him drive it. Court ruled that the evidence supported the finding because the officer testified she did not lose sight of it for long, white and silver look similar in the dark and she saw Petitioner run from the driver's side and throw the keys away. Hearings Examiner's decision was supported by the evidence. (See also Section 9, Issues Involving Chemical Tests)
Marshall v. Beecher, 07-E-0224, (Rockingham, Smukler, 07/31/07) AFFIRMED
Petitioner claimed the Hearings Examiner erroneously applied State v. Winstead. Court ruled that the evidence supported the finding of actual physical control. She had the vehicle's keys in her purse and was seated in the driver's seat of the vehicle which had been seen leaving and returning to the bar [area]. Petitioner had been seen leaving the bar while being impaired. Hearings Examiner's decision was supported by the evidence.
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Santos v. Beecher, 06-E-0091, (N D Hillsborough, Lewis, 06/16/06) AFFIRMED
Arrested for DWI, after a foot pursuit leading away from the suspect vehicle, Petitioner refused testing. Petitioner argues the suspension was inappropriate, as the evidence of operation was insufficient; making the Hearings Eaminer's findings "…an abuse of discretion." The Court found that, from the Hearings Examiner's findings and recommendations, he credited the testimony of the officer as "…he was entitled to do in the course of dealing with this case." The Court concluded that the Petitioner failed to meet his burden. "The decision is hereby AFFIRMED and the appeal is DENIED and DISMISSED."
Doherty v. Beecher, 05-E-357, (Grafton, Burling, 02/27/06) AFFIRMED
Petitioner argues it was error for Hearings Examiner to find he was in actual physical control because (1) officer never saw him drive; (2) because he was acquitted in District Court and (3) because the finding was against the weight of the evidence. The Court held that an officer can rely on witness accounts and furthermore Petitioner admitted to driving there. The Court found that the result in District Court was irrelevant and a different standard of proof applies. Finally it found that the hearings examiner may rely on whatever testimony was found to be reliable and does not need to explain what evidence was relied on or why. (On 03-20-2006, Petitioner's Motion for Reconsideration was denied by Justice Burling)
McEvoy v. Beecher, 05-E-188, (Rockingham, Morrill, 09/01/05) AFFIRMED
Plaintiff alleges he was neither operating the vehicle or in physical control; Petitioner pointed out the Jeep he had been driving to avoid getting it towed and admitted to driving it to the parking lot.; Court held that: "Since there was no transcript and Petitioner did not testify at the hearing, the evidence was sufficient to prove operation. It was not unreasonable for the Hearings Examiner to conclude that he drove the vehicle in violation of RSA 265:82 (See also Section 7, Probable Cause)
Kimball V. Beecher, 05-E-165, (Strafford, Mohl, 11/18/05) AFFIRMED
Arrested for DWI. After hearing, argued evidence was not sufficient to support actual physical control. Evidence was vehicle was not running, and keys were not in the ignition but on the seat. Petitioner was in driver's seat and alleged boyfriend was coming to pick her up. Court ruled that standard was whether person had the capacity to guide or exercise dominion over vehicle. Engine not running and keys not in ignition are not necessarily dispositive.
Sisk v. Beecher, 05-E-109, (Merr, Fitzgerald, 06/29/05) AFFIRMED
Petitioner appealed, alleging he was not required to take tests under RSA 265:84 because he was charged with RSA 318:2 possession of marijuana. Court ruled that implied consent law applied following arrest for any offense committed while DUI citing Saviano v. Director, 151 NH 315(2004). The test is reasonable grounds to believe under Jacobs. He also appealed on the issue of "actual physical control". He was asleep with keys in the ignition and engine running. Court affirmed under State v. Winstead, 150 NH 244 (2003).
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Fields V. Beecher, 04-E-207 (Merr, Fitzgerald, 10/06/04) AFFIRMED
Arrested for DWI; failed FST's; impaired speech, glassy eyes; Petitioner also had 2 open beer bottles and a six-pack of beer in the vehicle; agreed to breath test; tested over .08; Petitioner argued that he told the officer he was not driving, so they had no reason to arrest him and suspend his license COURT held: "under the statute, the findings of the Hearings Examiner are prima facie lawful and reasonable. The Hearings Examiner is the best position to evaluate the credibility of witnesses." "…therefore, based on her assessment of the testimony, there was sufficient evidence to uphold the suspension."
Rivadeneira v. Beecher, 04-E-55 (Rockingham, Coffey, 06/03/04) AFFIRMED
Petitioner was involved in an accident, "Petitioner/owner of the vehicle, advised the police officers that they had been coming from a party and had been involved in the crash but did not know who had been driving at the time of the crash. friends of the Petitioner, stated that Petitioner was driving the vehicle when he left the party. Petitioner failed the FST's and stated he was "cocked" and couldn't do the test or drive." HELD: "…While the Petitioner could have contested the statements of his peers and/or testified that he was not the driver of the vehicle, he declined to do so …" The Hearings Examiner's decision is AFFIRMED.
Turner v. Beecher, 04-E-50, (Rockingham, Morrill, 05/13/04) AFFIRMED
Petitioner claims he was not in actual physical control of a vehicle as the officer approached because he was never seated behind the wheel, thus negating his capacity to guide or exercise dominion over the vehicle. HELD: "Petitioner misconstrues the definition of actual physical control. The reasonable conclusion that follows from these facts is that Petitioner was not using the truck as a stationary shelter. Rather, his actions … demonstrate that he was about to jeopardize the public by exercising control over the vehicle while intoxicated …" The Hearings Examiner's decision is AFFIRMED
Durant v. Beecher, 03-E-411, (Merrimack, Lynn, 03/10/04) AFFIRMED
Arrested for DWI;Petitioner alleges she was not in "actual physical control" of the vehicle; Petitioner was passed out in the driver's seat; when the officer asked her where the keys to the vehicle were, she reached around to the floor behind and grabbed the keys. Court held: "There was sufficient evidence to support the conclusion that … was driving her vehicle, albeit not at the very moment the officer came upon her."
Alcorn v. Beecher, 03-E-379, (SD Hillsborough,, Groff, 01/30/04) AFFIRMED
Vehicle involved in an accident, arrested for DWI; Petitioner claimed he was not the driver; Court held: Hearings Examiner did not err in crediting officer's testimony over conflicting testimony of a witness who claimed to be the actual driver; crediting circumstantial evidence; Petitioner did not testify.
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Lombardi v. Beecher, 02-E-401, (ND Hillsborough,, Brennan, 1/21/03) AFFIRMED
Petitioner claims that he was not in actual physical control of a vehicle at the time the officer approached, because he was engaged in sexual activity;that the vehicle was never turned on during the encounter, and that the keys were only put in the ignition and turned on(without turning the motor on) to roll down the window. Court held: "the fact that …was engaged in an amorous relationship is irrelevant. At the time the officer observed…, the keys were in the ignition and he was rolling down the window. Nothing further is required." (NOTE: cross-reference Section 1, Issues involving various grounds for stop, III issue involving "way".
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Bruce v. Beecher, 02-E-211, (Rockingham, Abramson, 10/22/02) AFFIRMED
Arrested, informed of ALS rights, refused test; argued for the first time, at the hearing, "that he was not driving the car at the time he was arrested ";claimed "it was not his job to tell the Chief he was not driving, even though he knew he was under suspicion of DWI". Court finds "there was sufficient evidence for the Hearings Officer to have concluded that the petitioner was driving while under the influence of alcohol."
Bonnin v. Beecher, 02-E-114, (Belknap, McHugh, 8/9/02) AFFIRMED
Vehicle stuck in the snow bank; police officer investigated and did not see petitioner drive; officer deduced petitioner to be the driver based on circumstantial evidence; the sole issue is whether or not the petitioner operated the vehicle on the night in question … whether the evidence in the certified record is sufficient to support the findings of the Hearings Examiner. Court held: "It was the prerogative of the Hearings Examiner to give whatever weight he felt was due to all of the testimony. This Court determines that his findings were reasonable given the evidence presented."
Carter v. Beecher, 01-E-449, (Merrimack, Fitzgerald, 2/28/02) AFFIRMED
Plaintiff alleges he was neither operating the vehicle or in physical control of it when arrested; "actual physical control" will vary depending upon the facts of the case; plaintiff was observed getting into the driver's seat with the motor running; court held that: "As Mr. Carter took control of the vehicle while the motor was running it was not unreasonable for the Hearings Examiner to conclude that Mr. Carter attempted to drive the vehicle in violation of RSA 265:82
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Kelley v. Beecher, 01-E-20, (Rockingham, Hollman, 6/27/01) AFFIRMED
Arrested for DWI; Hearings Examiner found that "petitioner was in "actual physical control "of the vehicle" Atkinson v. State, 627 A.2d 1019,1028 (Md. 1993) "[i}ndeed, once an individual has started the vehicle, he or she has come as close as possible to actually operating it without doing so and will generally be in 'actual physical control' of the vehicle." (NOTE: cross-reference Section 7, probable cause)
Archibald v. Beecher, 00-E-337, (Rockingham, Abramson, 4/26/01) AFFIRMED observed petitioner asleep in the Driver's seat of his vehicle, parked halfway off of the paved portion of the road;arrested for DWI;advised of ALS rights; took a breath test; results .36;challenged "operating a motor vehicle"; RSA 259:24 states "to "drive" is defined as "to operate" or "be in actual physical control" of a motor vehicle. "While the vehicle's engine was not running, its radio was on and its keys were in the ignition." Court held: "These facts alone, … are more than sufficient for the Examiner to reasonably and lawfully find that the petitioner was "driving", or was in "actual physical control" of the vehicle. (NOTE: Section I, Issues involving "Way")
Switzer v. Beecher, 01-E-4 (Merrimack, McGuire, 4/3/01) AFFIRMED
Trooper received radio dispatch from headquarters advising of a possible intoxicated driver; located vehicle in parking lot; man asleep at the wheel, vehicle hood still warm, keys in the ignition; petitioner admitted he had been operating vehicle, arrested for DWI: court held: "in addition to signs of drunkenness … Trooper had a reasonable belief that petitioner had been driving … and that he would continue driving in the immediate future, after his nap, which justifies a finding of "actual physical control." citing State v. Halloran and State v. Willard.
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Gregg v. Beecher, 00-E-120, (SD Hillsborough,, Brennan, 9/5/00) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that "First, Plaintiff stated at the scene that he was alone in the car when the accident occurred. From Plaintiff's statement, the hearings officer reasonably concluded that he was the driver. Second, a witness, Mr. Taylor, personally observed Plaintiff driving around in circles. Finally, dispatch reports that someone was attempting to flee from the scene referred to the Plaintiff himself, not to some unknown third party, as Plaintiff's counsel has postulated … Plaintiff had just been driving, had the keys in his pocket and was standing next to his car. He clearly had actual physical control over the automobile sufficient to satisfy the statute", citing State v. O'Malley, State v. Willard and State v. Tarantino. (NOTE: cross-reference to Section III of grounds for stop, Section I of probable cause, Section I of refusal and Section V of procedural issues involving ALS cases)
Parenteau v. Beecher, 00-E-47, (Belknap, Smukler, 8/1/00) AFFIRMED
Observed vehicle in ditch after receiving anonymous complaint that two males were "beating on it"; officer noticed two males at a pay phone a short distance from scene; two males began to run away but returned after a short time; taken into protective custody and arrested for DWI after plaintiff admitted to driving the vehicle; court held that "… the police encountered the petitioner and his friend in an area where there was no one else around, outside in bitter weather. The vehicle was registered to the petitioner's parents. The petitioner's companion told the police, albeit indirectly, that the petitioner was the driver. The only other explanation under these circumstances would be that the petitioner and his friend drove the car off the road while sober, then left the vehicle in 25 to 30 degree below zero weather to go get drunk and then returned to the vehicle to beat on it. Given that there was no one else in the area and the only nearby business was closed, this seemed like a highly improbable, if not absurd conclusion", citing State v. Halloran. (NOTE: cross-reference to Section III of probable cause)
Stevens v. Beecher, 00-E-47, (Rockingham, Abramson, 3/8/00) AFFIRMED
Observed vehicle parked at boat launch with open container of alcoholic beverage on roof; plaintiff was driver and female in passenger seat had open can of beer in hand; keys to vehicle were in ignition; plaintiff claimed that he was asleep when officer approached the vehicle; arrested for DWI; court held that "Even in cases where the driver was 'soundly asleep' behind the wheel of a parked car, the Supreme Court has held that 'circumstantial evidence which excludes any other rational conclusion is sufficient to establish beyond a reasonable doubt the actus reus set out in a motor vehicle statute' … "A rational trier of fact, viewing the evidence most favorably to the State, could have found beyond a reasonable doubt that the plaintiff was in actual physical control of the vehicle"; citing State v. Willard, State v. Tarantino and State v. Halloran. (NOTE: cross-reference to Section III of grounds for stop and Section IV of procedural issues involving ALS cases)
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Beaulieu v. Beecher, 99-E-513, (Rockingham, Abramson, 12/28/99) AFFIRMED
Observed vehicle in breakdown lane of road; plaintiff argued that his 16-year old son, a passenger in the vehicle, had driven to that location; arrested for DWI; court held that "A rational trier of fact, viewing the evidence most favorably to the State, could have found beyond a reasonable doubt that the plaintiff was in actual physical control of the vehicle", citing State v. Halloran and State v. Tarantino.
Cavanaugh v. Beecher, 99-E-163, (Grafton, Fitzgerald, 12/20/99) AFFIRMED
Observed vehicle in middle of intersection; plaintiff asleep with seat reclined; engine not running and headlights off; tire flat; arrested for DWI; court held that "… the keys were in the driver's seat and the Petitioner was found sitting behind the wheel of his vehicle which was parked illegally in the middle of the intersection. More importantly, the Petitioner told Trooper Terhune that before he got the flat tire, he had been driving home from a wedding where he had consumed six beers. In addition, the Petitioner exhibited numerous signs of drunkenness … a rational trier of fact could find beyond a reasonable doubt that the defendant was operating the vehicle in an inebriated condition and was therefore, in actual physical control of the vehicle", citing State v. Willard and State v. Halloran.
Boress v. Beecher, 99-E-495, (Rockingham, Abramson, 12/7/99) REVERSED
Observed vehicle in lot by ball field; no keys in ignition and no one around vehicle; plaintiff, who was owner of vehicle, emerged from outhouse nearby; plaintiff claimed a friend had driven him there and someone would be coming to give him ride home; arrested for DWI; court held that the officer"… never saw the petitioner inside the truck, the truck's engine was not running, the lights were not on, the keys were not in the ignition, the petitioner did not state that he intended to drive, and in fact, stated that someone else had driven the truck to that spot and would soon arrive to give him a ride … the Court finds that Officer Reppucci lacked reasonable grounds to conclude that the petitioner was in actual physical control of his vehicle", citing State v. Willard, State v. Halloran and O'Shaughnessy v. Beecher, below.
Whittemore v. Beecher, 99-E-161, (Merrimack, McGuire, 11/30/99) AFFIRMED
Observed vehicle in parking lot of New England College with engine running and lights on; plaintiff asleep in vehicle; plaintiff claimed that he had been locked out of dormitory and had started the vehicle to keep warm; arrested for DWI; court held that plaintiff's statement that he had started the vehicle for warmth "… constitutes direct evidence that he was in actual physical control of his vehicle", citing State v. Willard and State v. Halloran. (NOTE: cross-reference to Section I of probable cause)
Tole v. Beecher, 99-E-273, (Rockingham, Abramson, 8/18/99) AFFIRMED
Officer stopped vehicle on side of Route 28 bypass; arrested for DWI; plaintiff conceded that he drove to that location and that he was under the influence of alcohol; "At the time Officer Surette approached, the plaintiff was in actual physical control of the vehicle, he was seated in the driver's seat, the keys were in the ignition, the ignition was in the 'on' position and the interior light was on. A rational trier of fact, viewing the evidence most favorable to the state, could have found beyond a reasonable doubt that the plaintiff was in actual physical control of the vehicle", citing State v. Halloran and State v. Tarantino.
Flewelling v. Beecher, 98-E-410, (Merrimack, Manias, 3/1/99) AFFIRMED
Observed vehicle in breakdown lane of Interstate 89; plaintiff asleep with motor not running; keys in ignition; arrested for DWI; court held that "there is no dispute that the petitioner was sleeping in the driver's seat of the vehicle, that the keys were in the ignition, and that the motor was not running. The petitioner exhibited signs of intoxication, and explained to Trooper Curran that he was driving home and decided to pull over to take a nap … it was reasonable for the hearing examiner to conclude that the petitioner had been driving the vehicle in an inebriated condition and that he would continue driving in the immediate future, justifying a finding of actual physical control", citing State v. Holloran and State v. Willard. (NOTE: cross-reference to Section III of grounds for stop; Section I of procedural issues involving ALS cases and Section I of probable cause)
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Mansur v. Beecher, 98-E-258, (ND Hillsborough,, Groff, 11/19/98) AFFIRMED
Observed vehicle on sidewalk, having collided with a tree; engine running and plaintiff asleep; upon waking plaintiff, he laughed and attempted to start vehicle; plaintiff did not recall operating vehicle; arrested for DWI; court held that "… it is not necessary that the police officer actually observe the vehicle moving to find that the defendant was 'driving' a motor vehicle under RSA 265:82 … The court finds that the evidence supported the finding that the defendant was in actual physical control of the motor vehicle", citing State v. Halloran.(NOTE: cross-reference to Section V of procedural issues involving ALS cases)
LaBonte v. Beecher, 98-E-149, (Rockingham, Galway, 7/21/98) AFFIRMED
Observed vehicle in parking lot with parking lights on and engine running; plaintiff in driver seat in reclined position, partially clothed from the waist up; husband in passenger seat, also partially clothed from the waist up; arrested for DWI; court held that plaintiff was in actual physical control of the vehicle and that "it is also reasonable to conclude that after the plaintiff and her husband were finished with their business, she would be operating the vehicle while under the influence of intoxicating liquor", citing State v. Willard and State v. Halloran. (NOTE: cross-reference to Section I of procedural issues involving ALS cases)
Somers v. Beecher, 98-E-15, (Grafton, Fitzgerald, 4/14/98) AFFIRMED
Observed pickup truck driving erratically, veering in and out of the breakdown lane; officer activated lights and stopped vehicle; as he shined search light on vehicle, officer observed the driver and passenger switch positions, so that passenger (plaintiff) was now behind wheel; arrested for DWI; "… the Court finds there was sufficient evidence from which the hearing examiner could find that the petitioner was in actual physical control of a motor vehicle at the time Trooper Terhune commenced his inquiry into whether the petitioner was operating a motor vehicle while intoxicated".
Hughes v. Beecher, 97-E-129, (Strafford, Nadeau, 1/7/98) AFFIRMED
Report of vehicle in Burger King parking lot after business hours, which had been there for at least one-half hour and parked about fifty yards from entrance to Spaulding Turnpike; vehicle parked with engine off and parking lights on; plaintiff asleep in driver's seat along with passenger; keys in ignition; plaintiff claimed that he had not been driving and had been in parking lot for two hours; arrested for DWI; "the evidence indicates that the petitioner was in actual physical control of the truck when it was observed pulling into the Burger King parking lot. Moreover, though petitioner was apparently asleep during a brief road stop, he would imminently have driven back onto the Spaulding Turnpike in an effort to reach Massachusetts", citing State v. Halloran and State v. Willard. (NOTE: this is a very detailed opinion!)
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McCann v. Beecher, 97-E-262, (Rockingham, Gray, 9/2/97) AFFIRMED
Observed vehicle in parking lot with headlights on; plaintiff asleep behind wheel with head back and mouth open; officer woke up plaintiff to check condition; arrested for DWI; court held that "while she was not, at that time, actually operating the vehicle, circumstantial evidence would lead to the reasonable conclusion that she had placed the vehicle in its position when the officer came upon it".
O'Shaughnessy v. Beecher, 97-E-101, (Rockingham, Gray, 4/29/97) REVERSED
Trooper observed vehicle in parking lot at approximately 2:00AM; headlights on but vehicle not running; after 15 minutes, trooper approached vehicle; plaintiff indicated that he was waiting for his brother to pick him up as he had been drinking; while trooper was giving FS tests, another vehicle arrived, driven by plaintiff's brother, who confirmed that he had been asked to pick up his brother; arrested for DWI; court held that "despite the fact that the officer acted appropriately in deciding to investigate, prior to the time of arrest, she had sufficient information to support a finding that the defendant was not driving and did not intend to drive while he was intoxicated … the fact that the key was in the ignition and the headlights were on are not, under these facts, enough to find that the petitioner was operating the vehicle in violation of the statute".
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Biello v. Beecher, 96-E-410, (Rockingham, Gray, 11/14/96) AFFIRMED
Trooper stopped to check on vehicle pulled over to the side of the highway late at night; arrested for DWI; plaintiff claimed that trooper never saw her driving; court held that "it stretches the imagination to state that because the trooper did not actually see operation that she could not surmise that the plaintiff was somehow transported to that lonely area and placed in the vehicle, which happened to be registered to her. This is especially true when the driver admitted driving".
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Thompson v. Turner, E-94-153, (Belknap, O'Neill, J., 1/6/95) AFFIRMED
Vehicle had been sitting at gas station for some time; officer sent to check it out; observed vehicle pointed in direction of roadway; observed that vehicle was running, keys were in ignition, air conditioner was on and windows were rolled down; plaintiff was alone and asleep in driver's seat with feet resting near pedals; plaintiff claimed that he was not driving and was waiting for somebody across the street; nobody else was observed in area and establishment across the street was closed; arrested for DWI; court held that "given the time of night and the location of the car, it was reasonable for Officer Daley to assume that the petitioner would have attempted to drive the car once he regained consciousness and would have posed a substantial danger to himself and other motorists", citing State v. Leary. (NOTE: very detailed analysis of probable cause, citing several cases!)
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Pinkham v. Turner, 94-E-414, (Rockingham, Coffey, 11/21/94) AFFIRMED
Driver reported that vehicle was "all over the road"; gave description of vehicle and plate number to officer; provided address of owner and officer observed vehicle in driveway (fitting description given); engine was off, lights were on, hood was warm and 16 minutes had elapsed from time of report; plaintiff in driver's seat asleep with can of beer between legs; plaintiff indicated that he had parked in driveway, drank some beer and fell asleep; arrested for DWI; court held that all observations led to reasonable belief and inference that plaintiff had recently operated vehicle. (NOTE: cross-reference to anonymous complaints and Section IV of probable cause)
Collins v. Turner, 94-E-159-B, (SD Hillsborough,, Dalianis, 7/20/94) AFFIRMED
Vehicle had been in parking lot several hours; waiting for friend; had been drinking; engine running due to cold weather; open beer can in console; plaintiff consented to FS tests but claimed he had not been driving; arrested for DWI; sufficient for officer to detain and further investigate. (NOTE: cross-reference to Section I of issues involving chemical tests)
Chadwick v. Turner, 93-E-709, (Merrimack, McGuire, 4/11/94) AFFIRMED
observed vehicle in middle of road with flashers on; keys in ignition but vehicle was not running, although it was on; plaintiff slumped over the wheel and would not respond; had to call EMT's to revive him; arrested for DWI; court held that plaintiff was in actual physical control of the vehicle. (NOTE: cross-reference to Section I of refusal)
Comeau v. Turner, 94-E-14, (Strafford, Dickson, 3/25/94) AFFIRMED
Vehicle in middle of parking lot, vehicle was running; heater and radio were on; plaintiff asleep behind the wheel; arrested for DWI; court held that plaintiff was in actual physical control of the vehicle.
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Fisher v. Turner, 93-E-501, (Merrimack, Arnold, 12/15/93) AFFIRMED
Vehicle parked in breakdown lane; position of vehicle was odd and parking lights were on; late at night; officer approached and knocked on window; plaintiff seated in driver's seat leaning toward the passenger side; did not respond immediately; keys in ignition and fan was running; plaintiff stated that he was tired and pulled over to take a nap; arrested for DWI; court credited officer's testimony and found that plaintiff was in actual physical control of the vehicle.
Guilbeault v. Turner, 93-E-411, (Merrimack, Arnold, 9/13/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Vehicle involved in accident; plaintiff only person at scene; plaintiff was owner of vehicle; claimed he was passenger but refused to give information about the driver or any facts surrounding the accident to the officer until the subsequent DWI trial; "the Court finds by a preponderance of the evidence based on the facts presented that Officer Morelli had reasonable grounds to believe that Mr. Guilbeault had been driving or was in actual physical control of his car on the evening in question".
Castiglione v. Turner, 92-E-469, (Rockingham, Perkins, 2/2/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Vehicle stopped in middle of travel lane; lights were on, motor was running and driver's window was down; plaintiff asleep in driver's seat with Dunkin' Donuts box in lap; arrested for DWI; plaintiff claimed that Dunkin' Donuts was an easy walk, no one saw him drive and vehicle was not in direction of his home; "the Court does not find these arguments compelling and does find, based on the evidence, that Officer Surette did have a reasonable belief that the plaintiff had been driving the vehicle and/or was in actual physical control of the vehicle".
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Allard v. Turner, 92-E-401-B, (SD Hillsborough,, Murphy, 11/13/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; plaintiff argued that he refused to take test because he was not the operator of the vehicle; court held that there was probable cause to make an arrest as "the plaintiff indicated to the officer when first questioned that he had run over something in the road; the officer observed the plaintiff exiting the vehicle from the operator's side of the vehicle; the plaintiff was alone; it was in the early hours of the morning on a sparsely traveled road with no others in sight; that plaintiff never advised the officer who it was that was operating the car or where he was at the time; and the keys to the car were in the ignition".
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