Drunken driving while unconscious

Michael Smerconish: Drunken driving while unconscious
1.28.10
By Michael Smerconish - Daily News
Philadelphia Daily News
Daily News Opinion Columnist

DURING the late-1960s and into the '70s, Alan Page wreaked havoc on quarterbacks throughout the NFL, including those lining up under center at Veterans Stadium. Page was the first defensive player in league history to win an MVP, and the legendary Purple People Eaters were a perfect 4-0 against the Eagles during his 10-plus years with the Minnesota Vikings.

Well, if Page's current logic was extended to Lincoln Financial Field, he could now wreak havoc on Eagles tailgaters almost three decades after retiring from football.

Just ask Daryl Fleck. Shortly before midnight on June 11, 2007, police found Fleck asleep behind the wheel of his car, which was parked legally in the lot outside his apartment building.

The officers suspected he was drunk, and Fleck told them he'd consumed as many as 12 beers that night. (He was later found to have a blood-alcohol level of .18.) But he denied having driven. The officers observed that the engine was cool, the lights weren't on, and the keys weren't in the ignition.

The keys were, however, sitting in the center console of the car. And given that Fleck told the officers that the vehicle was operable, he was deemed to be "in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger."

A jury found him guilty of "being in physical control of a motor vehicles [sic] with a blood alcohol concentration of .08 or more." And since Fleck stipulated during his trial that he had three "impaired-driving" incidents within the previous 10 years - an additional felony according to Minnesota law - his sentence was lengthened to four years in prison.

In other words, Fleck is headed to the slammer after being found sleeping in his car. Keys in the console, a functioning vehicle and a rap sheet hardly seem like adequate justification for his punishment. Nevertheless, the Minnesota Supreme Court last week affirmed Fleck's conviction by ruling that a jury could reasonably conclude from the facts presented that he was in "physical control" of his vehicle while he was drunk.

Guess who wrote the seven-page decision: Justice Alan Page.
I worry about the message that decision sends. Surely we don't want Fleck driving while drunk. But we would certainly rather he sleep off a bender instead hitting the road, right? If someone leaves a bar realizing they're tipsy, we don't want them to bypass a nap because they know they're just as guilty asleep as they are driving.

Which makes me think of tailgating.

Page's decision is relevant only to Minnesota. But what if the logic behind it were applied to imbibers outside the Linc? Page wrote that a jury could find Fleck guilty because he exercised "physical control" over his vehicle. Physical control, he continued, "is meant to cover situations when an intoxicated person 'is found in a parked vehicle under circumstances in which the vehicle, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to the property.' "

Look out if that thinking kicks in at Lots M or N before an Eagles kickoff. Or any other parking lot where the pregame festivities involve booze and tailgating.

We've all seen the Birds fans who stand outside their cars or vans and drink their way past the legal limit before kickoff. Many don't think twice about climbing into their cars, putting the keys in the ignition and turning on sports radio or the Eagles fight song as part of the ritual.

And yet, by the standard set forth in Page's decision, that drunk gamer or concertgoer would be determined to be in "physical control" of a potentially dangerous vehicle - even more so than a guy sleeping behind the wheel without the keys in the ignition.
Somebody needs to challenge the ruling on the field. I'd rather encourage potential drunken drivers to call time out instead of giving them reason to launch an unnecessary Hail Mary in the direction of the end zone.

Listen to Michael Smerconish weekdays 5-9 a.m. on the Big Talker, 1210/AM. Read him Sundays in the Inquirer. Contact him via the Web at www.smerconish.com.