dissenting. I do not believe that the evidence here, even when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that defendant is guilty beyond a reasonable doubt of being in actual physical control of a motor vehicle while intoxicated.
At the outset, I must express my disagreement with the majority’s characterization of defendant’s argument. The majority miscasts defendant’s claim when it asserts that defendant does not argue that no credible evidence supports the verdict. On the contrary, that is precisely defendant’s first argument; the evidence “was insufficient to prove that appellant was in actual physical control of the vehicle.”
Conviction cannot be had solely on the basis of close proximity to a vehicle with its motor running. As courts in other jurisdictions have recognized, to hold otherwise strains the essential element of actual physical control beyond all recognition. In Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984), a trooper saw a pickup truck parked in the emergency lane of an interstate. The defendant was standing at the front of the vehicle in which a passenger sat; the hood was up and the engine was not running. The trooper approached and detected the odor of alcohol. The defendant testified that he had removed the keys from the ignition to unlock the hood to check on the truck’s water problem. The Supreme Court of Virginia distinguished several precedents that parallel cases like State v. Trucott, 145 Vt. 274, 487 A.2d 149 (1984), on the ground that the defendant was not in the driver’s seat when found by the police. Overbee, 227 Va. at 243, 315 S.E.2d at 244. The court explained that while the defendant’s possession of the keys may have provided him with the means of exercising control over the truck, the defendant could not have been in “actual physical control of the vehicle when he was standing in front of it on the highway.” Id. at 243, 315 S.E.2d at 244; see also Bearden v. State, 430 P.2d 844, 847 (Okla. Crim. App. 1967) (defendant lying unconscious at the roadside and outside his vehicle could not be in actual physical control of his vehicle).
Here, defendant was as close to the vehicle as Overbee was to his truck. The danger posed by the accused’s potential opera*621tion of the vehicle serves as the underlying rationale of Godfrey, Trucott, and the majority opinion in this case. However, that potential exists whether the engine is on or off, if the defendant has the keys or access to them. See Trucott, 145 Vt. at 277, 487 A.2d at 151 (engine off, defendant asleep in driver’s seat). Therefore, the fact that the motor was running in this case cannot serve as a meaningful distinction. Defendant’s affirmative response to the trooper’s inquiry as to whether or not defendant was alone did nothing more than affirm the obvious but said nothing about actual physical control.
Simply put, the State has not met its burden of proof regarding actual physical control. The problems caused by drunk driving are serious, and the Legislature has responded with a statute designed to reduce or eliminate them. Still, there must be a more substantial link of the accused Nto the vehicle if we are to avoid conviction on suspicion alone. Cf. State v. Partlow, 143 Vt. 33, 39, 460 A.2d 454, 457 (1983) (though entirely circumstantial, evidence “was sufficiently cogent and persuasive to lift its effect above mere suspicion” to sustain a burglary conviction). The State presented no evidence associating the defendant in any way with the vehicle. From all that appears, the defendant could have been the passenger that the majority says could not be considered to be guilty. Therefore, on the evidence presented, more than a reasonable doubt exists that defendant was in actual physical control of the vehicle.
I would reverse.