美国法律英文备忘录.pdf

Memorandum To Martha Marples From Yang Li Re driving under the influence of alcohol Date unknown Robin Shymite our client he has decided to drive the car after drunk 2 or 3 bears but failed to drive as he feel too tired to drive and then sleep in the driver s seat The police officer approached the car and insisted that he had the alcohol test then the policeman put him in jail One day later his friend arranged for his release and our client worried about he will lose the medical license if convicted of driving while intoxicated Issue Does Shymite s conduct constitute driving the car while intoxicated because he admitted he drink bears and decided to drive home when leaving the bar though he did not actually drive the car away but sleep instead Short Answer Shymite s conduct probably not constitutes a driving under the influence of alcohol and his action has not violated RSA 265 82 as he turned off the engine and decided not to drive the car before falling asleep Shymite is passive and is not immediately going to control the car rather than using the car for a rest Facts Shymite drunk two or three bear in the local bar When leaving the bar Shymite decided to drive home but before moving the car he realized that he was too tired to drive He turned off the engine However he left the keys in the ignition so that he could listen to the radio while resting Approximately one and half hour later the policemen found him in the car and woke him up The policeman insisted he was fialed the alcohol test and put him in jail Discussion RSA 265 82 No person shall drive or attempt to drive a vehicle upon any way a While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs or b While such person has an alcohol concentration of 0 08 or more or in the case of a person under the age of 21 0 02 or more Driving for purposes of RSA 265 82 means operating or having actual physical control of the vehicle If the defendant had started his car before falling asleep if so then he was in actual physical control while awake and in the driver s seat The court says that the word drive does not necessarily mean operate The court says that if the occupant of the car is totally passive and has not actively tried to control or is not imminently going to control the car then that occupant should not be penalized by the law State v Willard 660 A 2d 1086 N H 1995 June Driving for purposes of RSA 265 82 means actual physical control of the vehicle Actual physical control varies according to the facts of the case but when it is reasonable to assume that the defendant will be imminently operating a vehicle rather than using the vehicle for stationary shelter the defendant will be found to be in actual physical control State v Holloran 669 A 2d 800 N H 1995 December In Williard case the vehicle s engine was idling and the defendant was asleep The court holds that if the defendant had started his car before falling asleep he was in actual physical control while awake and in the driver s seat Just like the Williard Shymite also started the car before falling asleep His action also constitutes the actual physical control of the car However unlike Williard case in this case Shymite turned off the engine instead Shymite has decided not to drive the car and he turned off the engine according to this action it is reasonable to believe Shymite is merely using the car for resting rather than driving home Hence though like the Willard Shymite was in actual physical control of the car but he is not attempt to drive the car In Holloran Case the court holds that the defendant was driving and in actual physical control of his vehicle when found sitting behind the wheel the keys in the ignition the vehicle parked and engine and lights off Just like the Holloran Case Shymite also left the key in the ignition However unlike Holloran Case Shymite turned off the engine before falling asleep and he left the key only for listening the radio while have a rest Shymite was only using the car for shelter and his conduct cannot constitute the actual physical control of the car Hence his action does not constitute a RSA 265 82 violation Prediction Shymite s conduct does not constitute a RAS 265 82 violaion In this case Shymite does not actually operate the car and also not going to start the car Provided the facts show that Shymite has changed his mind and decided