Posted On March 26, 2009 by Charles Ramsay

This week the Minnesota Court of Appeals upheld a DWI conviction of a man who was not driving his vehicle. In State v. Fleck, a jury convicted Daryl Fleck of "Driving while Impaired| even though he was not driving.

The court held:

Because Fleck's keys were readily available to him and there is no evidence in the record that his purpose for being in the vehicle was inconsistent with driving, the evidence that he was in physical control of the vehicle was sufficient to support convictions for driving while impaired under Minn.Stat. § 169A.20, subd. 1(1), (5).

The policy seems absurd. The court's interpretation of the statute criminalizes potential use, not actual control.

Coincidently, a day after the Minnesota ruling, an Arizona court ruled the opposite way. In doing so, the court explained its reasoning in Arizona v. Zaragoza:

Indeed, many impaired adults have ready access to a vehicle, and therefore the potential use of one, but retain the sound judgment not to drive. Had the legislature intended to more broadly reach those impaired persons merely at risk to control a vehicle, we believe it would have inserted specific language so indicating.... the language it chose suggests it intended to punish actual behavior that creates a potential for harm.

The Arizona court seems to make more sense. We should penalize those who actually drive, not those who could potentially drive.

What's next? Arresting citizens for what they could possibly do?