In covering each month the implied consent rule, I have tried to cover everything with respect to when a person can and should refuse and should not refuse a breath, blood, or urine test and the ramifications for the refusal.
The Pennsylvania Supreme Court has held that an individual was not in actual physical control of the movement of a vehicle where he was found sleeping in the passenger's seat of a vehicle parked alongside of a highway where the vehicle's keys were in the ignition switch and the switch was in the "off" position, the engine was not running, and none of the vehicle's lights were illuminated. This is the typical "asleep in the car" scenario that many a Chester County DUI lawyer encounter. This is the case of Banner v. DOT, 558 Pa. 439 (Pa. 1999). In this case, police officer found appellant sleeping in passenger seat of car parked along roadway. Although keys were in ignition, engine was not running and lights were not on. When officer tapped on car window, appellant awakened and reached for keys in ignition. No alcohol was found in car. After appellant failed field sobriety test, he was arrested for driving under influence of alcohol. Officer asked appellant to submit to chemical testing, but appellant refused. Court reversed order, holding that officer did not have reasonable grounds to believe that appellant was operating or in actual control of vehicle while under influence of alcohol. Evidence tending to establish appellant's control over vehicle's movement was too tenuous of connection to afford officer reasonable grounds to have believed that appellant was in actual physical control of movement of vehicle while intoxicated.
The definition and scope of "actual physical control" is broader and greater for "reasonable grounds" under 75 Pa. C.S. 1547 than the DUI statutes. The public policy behind this basis is that the implied consent rule is a remedial piece of legislation to be broadly construed because driving is a privilege, not a right, and a DUI is a penal statute.
Another lesson is that a police officer may have reasonable grounds to believe that more than one person was in actual physical control of the movement of a vehicle, despite the fact tht the second person may not have been sitting behind the vehicle's steering wheel. A big case that is a good example is Department of Transp., Bureau of Driver Licensing v. Hoover. In that case, after an officer stopped a vehicle which had swerved several times into the lane of oncoming traffic, he arrested the car's driver for driving under the influence. For safety reasons, the officer decided to transport both the driver and appellant to the station, and, on the way there, appellant acknowledged that he had grabbed the steering wheel of the car, causing it to swerve. Appellant was then arrested for driving under the influence, and, after he refused to submit to a blood alcohol test, appellee suspended his license on the grounds that he violated the implied consent law, Pa. Cons. Stat. § 1547(a). Appellant challenged the trial court's judgment affirming the suspension on the basis that he was not driving, operating, or in actual control of the movement of the car and thus the implied consent law was not applicable to him. In affirming the judgment, the court found that, in grabbing the steering wheel, appellant assumed physical control over the car's movement and thus came within the provision of the implied consent statute.