dissenting.
I dissent and echo the words of the Court of Appeals:
“Appellant’s last contention is that there was insufficient evidence to prove that he was driving or in control of the automobile. We do not agree. A.R.S. § 28-692(A) makes it unlawful for a person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within the state. Appellant and his vehicle were on a controlled access highway. He was behind the wheel, the keys were in the ignition, and he was intoxicated. The car had not been there shortly before when Officer Slade had previously passed. The only explanation as to how it got there is that appellant drove it there before he passed out. There is, therefore, circumstantial évidence that he drove the vehicle on the highway in violation of the statute. Furthermore, it is also clear that he was in actual physical control of the automobile. In State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954) the court held the defendant was in actual physical control of an automobile when he was passed out behind the wheel and the motor was running. We do not believe it necessary for the motor to be running in order for one to be in actual physical control of a vehicle within the meaning of the statute. We agree with Oklahoma decisions which *360hold that an intoxicated person seated behind the steering wheel of a car, asleep or passed out, with the keys in the ignition, is a threat to the safety and welfare of the public. He placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. See Mason v. State, 603 P.2d 1146 (Okl.Cr.App.1979); Hughes v. State, 535 P.2d 1023 (Okl.Cr.App.1975).”
I agree with the majority opinion on the other issues in the case.