Let's say you're sitting in a local pub having a few adult beverages after work.
You have every intention of either taking a cab home, or stopping after just a few, having a bite to eat to "sober up" and heading home later.
The conversation is good, the music is pumping, and the good times are generally rolling, and next thing you know you've had a couple more than you intended. Cab it is, then.
But since you're not driving anyway, you decide to stick around for a while longer. Since you ran out of cash, you duck out to your car to grab your checkbook.
You walk up to your car, but accidentally drop your keys. A police officer passing by sees you and decides to make a routine stop-and-check to make sure everything is OK.
Sensing that you are inebriated, the officer has you puff into a Breathalyzer. It registers 0.09, and the officer places you under arrest.
Why? You've just violated an essential part of North Dakota's driving under the influence laws. Since you were near your vehicle with the means to operate it if you decided to, you are in "actual physical control" of a motor vehicle while under the influence.
Many people are not aware that "APC" is the same exact charge as "DUI."
The language of the state's DUI law reads: "A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state," before continuing with conditions including the state's blood-alcohol concentration limit of 0.08 percent.
The 0.08 limit is not a particularly high bar to clear, as many who regularly consume alcohol can likely reach that threshold without being what they consider to be mentally or physically impaired.
Staggering or not, the 0.08 percent limit is the legal threshold for a "drunk driving" offense.
Little gray area here
As time has passed, society has allowed DUI laws to become more and more strict in an attempt to stem the injuries and deaths caused by drunken drivers.
Bob Martin, supervising attorney at the North Dakota Public Defender Office, is as big an advocate of making sure people are treated within their legal rights as anyone could be.
However, he said he has rarely seen any issue painted with a broader legal brush than the APC limitations.
"On a case by case basis, the (North Dakota) Supreme Court has knocked down a series of potential arguments based upon some fairly unique facts," Martin said. "Some of them are unbelievable, that people would put themselves in these positions."
Martin called APC an "intersection crime," because anytime you have three specific factors, all the elements for the crime are there - alcohol, vehicle and keys.
As with every criminal statute, lawyers have made attempts to find exceptions to the language of the law.
But time and time again, Martin said, the state Supreme Court has made it clear that the intent of the statute is to prevent an intoxicated person from getting behind the wheel and becoming a danger to the public.
In fact, the case of Novotny v. City of Fargo went so far as to say that intent to operate the vehicle is not a necessary element of the offense.
"Normally, to establish criminal liability or culpability, you have to have an intent to be reckless or negligent to commit the crime," Martin said. "It's not needed for APC.
"The Supreme Court specifically said that the intent to drive is not required for the offense."
Scenarios abound
Among some examples Martin gave is a case where a driver was sleeping in the back seat of a running vehicle that was stuck in a ditch.
A deputy stopped to check on the vehicle, which looked as if it had been driven straight into the ditch and would have required a tow truck to get out.
Nonetheless, the deputy arrested the man for APC.
The man's friend later claimed to have been the person driving the car, with the man asleep in the back seat the whole time. The friend claimed he left, walking, to find a pickup truck to pull the vehicle from the ditch.
However, the Supreme Court ruled that all the necessary elements for conviction were present.
In another case, an intoxicated driver was found passed out in the driver's seat of a vehicle with the keys in the ignition. The vehicle was on the side of the highway and had run out of gas.
The woman told the officer she was waiting for an automotive service to bring her gas. She later claimed that a friend had been driving her home, and she was waiting for the friend to return with gas.
The Supreme Court held that since the woman could have gotten gas and then operated the vehicle, she was guilty of APC.
The same holds true for a vehicle that has high-centered and is temporarily stuck. Since a little bit of assistance would render the vehicle operable again, a person in control of the vehicle's keys is in actual physical control.
The Supreme Court has even gone so far as to uphold the conviction of a man found passed out in his pickup on his own private property, about 100 feet from the roadway.
The vehicle the man was driving had been reported as swerving earlier that day, and the officer followed weaving tracks to and into the man's driveway.
"Private property didn't even present a bar to that rationale," Martin said. "That's usually the big consideration, but as a matter of policy, (the Supreme Court) has taken an incredibly hard stance on this."
Are you OK?
"If someone is seen slouched over in their vehicle, it becomes almost a community caretaking at that point," said Ward County State's Attorney Roza Larson. "The officer needs to check on them to make sure they're actually OK. At that point they don't know if something medical has gone wrong with them."
Many will cry foul, asserting that being arrested for APC is charging a person for a crime they have not yet committed.
But the Supreme Court's state is a simple one - if you don't like the law, get it changed. And that has not happened even though cases dating back more than 35 years show that the actual physical control language has been an element of DUI laws in North Dakota.
"We recognize that if the Legislature is not satisfied with our interpretation of a statute, it is free to amend that statute to reflect its true intentions," the court states in a 1990 decision.
"If the opportunity is there to exercise control over the motor vehicle, even if you don't have the intent to do so, if you're under the influence of alcohol as defined and you have keys, that's APC," Martin said.
Larson said she doesn't think the case law has gone too far to limit liberties in the case of APC, and Martin agrees.
"The primary concern is getting people who are actually on the road driving," Larson said. "In fact, I think with APC it's more the luck of the draw that they happen to grab someone who's in their vehicle passed out from alcohol, as opposed to sleeping or whatnot.
"A lot of APCs are actually called in to police because somebody's stopped on the road and not responding."
Police aren't actively patrolling to collect APC offenders, nor does Larson want them to.
"I want them to check to see that people are OK if they see somebody pulled over on the side of the road, and they're non-responsive or they don't know what's going on," she said. "It's a different situation if (police) drive by a vehicle that's stopped on the road and the person waves at them, because that person could just be pulled over to talk on their phone."
"The most senseless thing about drunken driving deaths is that they are completely preventable," Martin said. "A person did not have to die.
"I understand the policy. I agree with the policy."
