Facts: At 4:10 am the police officer note that they found MS on an side-by-side Razor ATV on a road in a remote community. There was non-specific reference in the police report to “erratic driving” at a time unspecified in the report that was filed. When the officer located MS his report made passing reference to the fact the MS was “observed driving vehicle” and that the “keys were in the ignition” and the “vehicle was running, lights were on”. The scant police report filed showed that MS was “sitting in the driver seat buckled in”. MS was taken from the scene to the police station where he blew twice into a breathalyzer device (not an ASD) which produced BAC readings of 90 mg% and later 80 mg%. MS was issued an ADP driving prohibition. On the IRP appeal it was argued that the police reports were very scant and vague and indeed an oversimplification of the actual circumstances. Statements and Affidavits were provided to show that MS had actually lent his ATV to another person (DR). DR had taken the ATV out into some remote trails and the ATV had hit a rock and damaged the gas tank and the drive train, making it inoperable. DR abandoned the ATV and retreated to MS’s house and the two had a couple beer and watched tv for a period of time. Later that morning, fearing the ATV may be stolen if left too long, the two went on to retrieve the broken ATV. The ATV was parked close to a road but at near a trial head. MS, who had an open beer with him, got into the driver’s seat, put the keys in and merely turned on the headlights so the two could see where they were going to push the ATV (ie. down the trail into a waiting pick-up). Interestingly MS indicated he tried to start the ATV merely for curiosity purposes and did not intend to drive in anywhere even if it did magically start. Decision: The SMV adjudicator indicated that MS was not a driver or in care and control of the ATV at the time the police arrived (4:10 am). Intended driving prohibition revoked, all monetary penalties paid by the SMV. (September 2013)
