Facts: Two roommates were drinking after work. One of them drove to the store to purchase cigarettes. On his way back he took his eyes of the road and struck a parked car. His car was not driveable after the accident and so he abandoned it in a haphazard fashion and he walked the short distance home and announced the situation to the other roommate, CG. While his roommate was on the phone to a tow company CG went to check on the car by walking the short distance to the car. Once there he entered the vehicle and put the keys in the ignition to check the instrument panel/car computer. The police arrived as CG was sitting in the driver’s seat. CG tried to explain the situation to the police but they would not listen. The police noted the smell of alcohol on the CG’s breath and thought that since CG was in “care and control” of the undriveable car when they arrived read CG a police demand to provide breath samples. CG, feeling threatened by the police if he didn’t provide samples, indeed provided not one by two samples of breath into two separate devices. Both ASD readings were FAIL readings indicating that CG’s BAC was over 80 mg%. On the IRP appeal CG admitted that he was too drunk to drive but disputed that he was in care and control and produced documentation/photos to show that the vehicle was undriveable after the mva and that CG would not have been able to drive it anywhere even the engine was engaged. Decision: The SMV was “not satisfied” that CG was a driver or in care and control of the broken vehicle and revoked the prohibition. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV. (May 2013)
