In State v. Nekolite the South Dakota Supreme Court clarified what is necessary to constitute "actual physical control" over a vehicle while under the influence of alcohol.
Donald Nekolite drove to a dance with his girlfriend. He drank heavily at the dance and the girlfriend remained sober because she was the “designated driver” for the evening. At some point during the dance, Nekolite went to his truck to get a cigarette. While standing outside the vehicle, he opened the passenger door and reached to the driver’s side to get a package of cigarettes. While reaching over, he inadvertently bumped the gearshift, putting the vehicle in neutral, and the truck rolled into a parked vehicle. After police investigated the accident, they arrested Nekolite and charged him with “driving” or being in “actual physical control” of a vehicle while under the influence of alcohol in violation of SDCL 32-23-1.
The South Dakota Supreme Court addressed the issue of what "control" is necessary to operate a vehicle in its usual and ordinary manner. The majority relied on the persuasive authority of pattern jury instructions and North Dakota case law and reasoned that "control" is determined by a person’s position in the vehicle and their related ability to operate the vehicle. This essentially means that "control" is determined, in part, by a person’s location inside a vehicle. Based on the facts of Nekolite’s case, the majority determined he was not in "control" of the vehicle because Nekolite had a sober designated driver who was to exercise control of the vehicle. In addition, because he was standing outside and reaching from the passenger's side of the vehicle he was not in a position to operate the vehicle in its usual and ordinary manner.
Justice Wilbur concurred in part and dissented in part. She dissented with the majority’s conclusion that Nekolite was not in actual physical control of his vehicle. Justice Wilbur disagreed that the majority relied only upon pattern jury instructions to analyze the statute. According to the dissent, by relying on the pattern jury instructions, the majority gave the instructions the force of law without an adoption by the Legislature. This adoption in effect added elements to SDCL 32-23-1 not expressly adopted by the Legislature. For the dissent, in interpreting the actual language of SDCL 32-23-1, the location of a person does not determine control of a vehicle, rather manipulation of the gearshift is what creates control. In other words, manipulation of a gearshift is sufficient to create operation of a vehicle in a usual and ordinary manner.