This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Donald Vincent Albano,




Filed March 20, 2001


Shumaker, Judge


Carlton County District Court

File No. K19914



James M. Ross, Jr., Assistant Carlton County Attorney, Office of Carlton County Attorney, Room 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)


John S. Lind, 920 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)


Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


A jury found appellant guilty of: (1) control of a motor vehicle while under the influence of alcohol; (2) control of a motor vehicle with a blood alcohol level of 0.10 or more; and (3) control of a motor vehicle with a blood alcohol concentration of .20 or more.

Appellant challenges the sufficiency of the evidence to prove that he was in physical control of the motor vehicle.  He contends that sitting in a motor vehicle with the keys in the ignition and the motor running does not constitute physical control because he was waiting for a ride from another person.

Because there was sufficient evidence to support a finding that appellant was in physical control of the motor vehicle, we affirm.


            On December 25, 1998, a Black Bear Casino employee observed appellant Donald Albano sitting behind the wheel of a motor vehicle parked at the casino.  His head was slumped over the wheel.  The keys were in the ignition and the engine was running. 

            The casino employee testified that he asked Albano to come into the casino, but Albano refused, saying he was waiting for a ride.  When Albano testified, he claimed that no one asked him to go inside because “drunks aren’t generally invited back in anyplace.  That’s silly.” 

In either case, when a Carlton County deputy stopped by the casino on a usual round, the casino employee escorted the deputy to Albano’s car.  The deputy noted that Albano appeared intoxicated and brought him to the Carlton County Law Enforcement Center where Albano submitted to a blood-alcohol test.  The test showed that Albano’s blood-alcohol concentration was over .20.  Albano was charged with being in control of a motor vehicle (1) while under the influence of alcohol, (2) with a blood-alcohol concentration of .10 or more, and (3) with a blood-alcohol-concentration of .20 or more.

            Albano testified that sometime between 5:30 and 6:00 p.m. he called his mother to pick him up.  He claimed he left the casino to wait for her at about 6:00 or 6:30 p.m.  Albano testified that he kept the motor running for the heat, and was not going to drive anywhere. 

A jury found Albano guilty of all three charges. 


Evidence is sufficient to support a conviction if, upon the facts in the record and the legitimate inferences to be drawn from those facts, the trier of fact could reasonably conclude that the defendant committed the crime charged.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  In assessing the sufficiency of the evidence, this court must assume that the trier of fact believed the evidence supporting the conviction and disbelieved evidence to the contrary.   State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999).

            When a person is under the influence of alcohol and in a position of physical control of a motor vehicle, that person violates Minnesota law.

It is a crime for any person to * * * be in physical control of any motor vehicle  * * *


(a)  when the person is under the influence of alcohol;

* * *

(d)  when the person’s alcohol concentration is 0.10 or more but less than 0.20;

* * *

(f)  when the person’s alcohol concentration at the time, or as measured within two hours of the time, of * * * being in physical control of the motor vehicle is 0.20 or more.


Minn. Stat. § 169.121, subd. 1 (1998).

“Physical control” has been construed to mean having the “means to initiate any movement of that vehicle” and being “in close proximity to the operating controls of the vehicle.”  State v. Hendricks, 586 N.W.2d 413, 415 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999).  Being behind the wheel of a vehicle, even without keys in the ignition, has been determined to be “physical control.”  Butterfield v. Commissioner of Pub. Safety, 393 N.W.2d 515, 517-18 (Minn. App. 1986).

One purpose of the “physical control” language is to prevent a drunken individual from getting into a vehicle except as a passenger.   State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).  Laws dealing with drinking and driving are remedial and must be liberally interpreted in favor of the public interest and against the private interests of the drivers involved.  State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).  The term “physical control” is more comprehensive than either “drive” or “operate” and it is given the broadest possible effect.  Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994) (citation omitted). 

Physical 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.


Id. at 581 (citation omitted).

Albano cites State v. Pazderski, where we reversed a DWI conviction because Pazderski used the motor vehicle as a place to sleep, to avoid a domestic problem, while the motor vehicle was parked in his driveway.  State v. Pazderski, 352 N.W.2d 85 (Minn. App. 1984).  In those unique circumstances, a finding of  “physical control” would not further the purposes of the statute.  But the facts in Albano’s case are more akin to Butterfield.  In Butterfield, the appellant was found sleeping in the car at a car wash.  We held that he “could still be considered a threat to the public since he could have set out on an inebriated journey at any moment.”  Butterfield, 393 N.W.2d at 518 (citation omitted).  Although Albano claims he was waiting for his mother to pick him up, nothing prevented him from driving the car if he chose to do so.

Albano’s reliance on Roberts v. Commissioner of Pub. Safety, 371 N.W.2d 605 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985), is also misplaced.   In that case, Roberts’ friends left a ballroom, placed him in a vehicle and took the keys before returning.    When the ballroom closed, they left Roberts’ keys near him, but disconnected the coil wire in the engine, rendering the vehicle inoperable.  Here, Albano not only had the keys, but the car’s engine was also running.

Moreover, Albano cites no cases indicating that a driver’s intent dictates whether or not the person is in physical control of the vehicle.  Intent to operate a motor vehicle is not an element of the offense.  “A drunken intent is highly problematic and too easily manipulated after the fact” and a legislative attempt to add it as an affirmative defense has already been defeated.  Starfield, 481 N.W.2d at 834 (citing  S.F. 223, Journal of the Senate, p. 1633, for April 13, 1989).

The facts in this case are a sufficient basis upon which the jury could find appellant guilty of the counts charged.