Isom v. State , 105 Nev. 391 ( 1989 )

OPINION

By the Court,

Mowbray, J.:

Appellant Leanette Isom appeals her third conviction for driving under the influence of alcohol (DUI) within seven years. Isom argues that she was not in “actual physical control” of her vehicle and is thus immune from prosecution for DUI. Isom also contends that she cannot be charged with felony DUI because the State failed to present evidence of her prior offenses. We disagree with Isom’s claims and affirm her conviction.

On August 15, 1985, at approximately 11:30 p.m., a Carson City sheriff’s deputy noticed a parked car near an empty telephone booth at a closed gas station. Suspecting a burglary, the deputy investigated and found Isom in the car behind the steering wheel slumped toward the passenger seat. The vehicle’s headlights were out but its engine was running. Isom did not respond to the deputy’s tapping on the window, so the deputy opened the door, turned off the engine and shook Isom until she awoke. Isom attempted to start the car and told the deputy she wanted to go home. The deputy smelled alcohol on Isom’s breath and noticed a number of unopened cans of beer in the back seat and two open cans of beer beside Isom. The deputy arrested Isom when she failed four field sobriety tests. Isom’s breathalizer test established a blood alcohol level of 0.24 percent, well over the statutory limit of 0.10 percent. NRS 484.379.

Isom was convicted of driving under the influence. At her sentencing hearing the State presented evidence that Isom had two prior DUI convictions but did not present evidence of the formal judgments of conviction. The State presented evidence that Isom pleaded nolo contendere to a DUI charge in 1982. As evidence of the 1982 conviction, the State presented the citation, Isom’s signed statement in which she admitted that she had driven while intoxicated, and the testimony of the justice of the peace who accepted her plea. The State also presented evidence that Isom pleaded guilty to a charge of DUI in 1984. As evidence of that conviction, the State presented the complaint, Isom’s guilty plea, and the sentence she received. The district court sentenced Isom for felony DUI. This appeal followed.

Isom contends that the State failed to prove she was in “actual physical control” of her car pursuant to NRS 484.379(1).¹ Specifically, Isom contends that she could not have been in actual physical control of her car because she was asleep.

For purposes of NRS 484.379 a person has actual physical control of a vehicle “when the person has existing or present bodily restraint, directing influence, domination, or regulation of the vehicle.” Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989). In Rogers, we provided several standards that triers of fact must consider in determining whether a driver was in actual physical control. See Rogers, 105 Nev. at 234, 773 P.2d at 1228.

Applying those standards, we hold that Isom was in actual physical control of her car. In particular, we note that the deputy found Isom asleep and in the driver’s seat with the engine running. Although Isom managed to leave the highway and reached private property, she had driven there on a public highway. Furthermore, she could have returned to the highway at any moment. In fact, when the deputy awakened Isom, she attempted to restart her car and drive off. Therefore, we conclude that the judge correctly found that Isom was in actual physical control of her car. NRS 484.379.²

Isom also contends that the district court erred in sentencing her for felony DUI. Specifically, Isom contends that the State failed to present sufficient evidence of her prior DUI convictions pursuant to NRS 484.3792.

A person’s third or subsequent conviction for DUI within seven years is punishable as a felony. See NRS 484.3792(2).³ NRS 484.3792(2) provides that a prior offense is one that occurred within seven years of the principal offense. NRS 484.3792(2) requires that the facts concerning the prior offenses must be proven at the time of sentencing.

The State presented evidence that Isom had been charged and convicted of DUI offenses in 1982 and 1984. As evidence of these prior offenses the State presented the citation Isom received for the 1982 charge and her plea of nolo contendere; as evidence of the 1984 charge, the State presented the complaint, Isom’s guilty plea and her sentence. This evidence was sufficient to establish that Isom had been convicted of two prior DUI violations within seven years of the principal offense. Accordingly, we affirm Isom’s conviction for third offense (felony) DUI.

Young, C. J., and Steffen, J., concur.

1 NRS 484.379(1) provides:

It is unlawful for any person who:

(a) Is under the influence of intoxicating liquor; or

(b) Has a 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.

2 There are at least two policies implicated in the instant case. The first, which we believe to be the policy currently implemented by Nevada law, places emphasis on not driving or placing oneself in a position to drive a vehicle while under the influence of alcohol. This policy is succinctly reflected in the highly publicized admonition, “If you drink, don’t drive!” The second policy addresses the problem of the drinker who, while operating a vehicle, realizes that his driving ability is impaired. Such a policy provides incentive for intoxicated motorists to pull safely off the highway without fear of being arrested. See Wash. Rev. Code § 46.61.504 (1985) (“No person may be convicted under this section [DUI] if, prior to being pursued by a law enforcement officer, he has moved the vehicle safely off the roadway.”). See also State v. Zavela, 666 P.2d 456, 459 (Ariz. 1983) (“it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control.”).

Any change or modification of the existing policy in favor of more lenient treatment for intoxicated motorists who voluntarily pull off the roads and highways prior to coming under the scrutiny of law enforcement authorities should be addressed by the legislature.

3 NRS 484.3792 provides:

(1) Any person who violates the provisions of NRS 484.379:

(c) For a third or subsequent offense within 7 years, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 6 years and must be further punished by a fine of not less than $2,000 nor more than $5,000. . . .

2. Any offense which occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.