dissenting.
I respectfully dissent. Defendant was passed out or asleep in the front seat of his car parked at an angle in the emergency lane of a controlled access highway with his car’s engine running. When the police officer was finally able to rouse him, his first impulse was to put the car in gear, apparently to drive away. In my view, defendant posed an extreme danger to himself and to others using the highway. Yet, a majority of the court, employing a newly adopted “totality of the circumstances” test, today holds that defendant is entitled to a new trial and may avoid conviction altogether on the theory that he was not in actual physical control of his vehicle. See Ariz.Rev.Stat.Ann. § 28-692(A) (Supp.1994). Because I believe that the law does not and should not allow this result, I dissent.
The purpose of section 28-692(A) “is to deter individuals who have been drinking intoxicating liquor from operating their vehicles while in an intoxicated state. The ‘actual physical control’ offense is a preventative measure intended to deter the drunk driver. One who has been drinking intoxicating liquor should not be encouraged to test his driving ability on any road, where his life and the lives of other motorists are at stake.” State ex rel. McDougall v. Superior Court, 173 Ariz. 582, 587, 845 P.2d 508, 513 (App. 1992);2 see also State v. Webb, 78 Ariz. 8, 11, 274 P.2d 338, 339 (1954) (purpose of section 28-692 is preventive); Atkinson v. State, 331 Md. 199, 627 A.2d 1019, 1025 (1993) (same).
In keeping with the legislature’s intent to prevent drunk drivers from causing harm, a person such as defendant should be considered in actual physical control of his vehicle. Such individuals have the ability to direct their vehicles in traffic at any moment and present an extreme threat to others. Defendant, in fact, tried to drive away immediately upon being revived. In State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954), we held that an intoxicated person found unconscious in his running vehicle, stopped on the roadway, was in actual physical control. We said, “An intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist.” Id. at 11, 274 P.2d at 340.
In light of the purpose of the statute, it should be possible for impaired individuals to escape the law only when they have clearly and unequivocally surrendered their ability to immediately direct their vehicles into traffic. Such a case was Zavala, where this court carved out a narrow exception and held that a driver who had pulled his car off the road and who had turned off his ignition had relinquished actual physical control. See State v. Zavala, 136 Ariz. 356, 358-59, 666 P.2d 456, 458-59 (1983). The combination of the two circumstances was held adequate to show a relinquishment of control over the vehicle. Id. From Zavala, the court of appeals has correctly discerned a two-element test: A driver must both place his vehicle away from the traveled roadway and turn off his ignition in order to be found not in actual physical control of his vehicle. State v. Superior Court, 153 Ariz. 119, 122, 735 P.2d 149, 152 (App.1987). The court of appeals below correctly applied this test in this case in affirming defendant’s conviction.
The majority today greatly broadens the narrow Zavala exception, concluding that it is too rigid. To the contrary, I believe the *329two-prong test created by Zavala is a limited, logical, bright-line rule that stays true to the legislature’s intent. Each of the two factors bears heavily on an impaired individual’s capacity to cause harm with his vehicle. A person seated in a vehicle with the engine running or in a lane of traffic is as close as one can get to driving without actually driving. Even the Maryland Court of Appeals, which the majority purports to follow, admits that “once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so and will generally be in ‘actual physical control’ of the vehicle.” Atkinson, 627 A.2d at 1028.
Because the purpose of section 28-692(A) is to deter and apprehend those who threaten public safety, the inquiry should focus, as it has in our prior cases, on factors that bear on a defendant’s apparent ability to cause harm. See, e.g., State v. Superior Court, 153 Ariz. at 122, 735 P.2d at 152 (holding that interests in public safety outweigh a drunk driver’s interest in being comfortable). The Zavala factors do that. The majority, however, invites a much broader inquiry. The majority enumerates such non-exclusive factors as “whether the driver had voluntarily pulled off the road; time of day and weather conditions; if the heater or air conditioner was on; whether the windows were up or down; and any explanation of the circumstances advanced by the defense.” Maj. op. at 325-326, 897 P.2d at 628-629. These factors may tend to explain why a person is parked by the side of the road or why his motor is running, but they do not help to show whether that person has the apparent ability to place his vehicle into the flow of traffic. The factors suggested by the majority are, I believe, quite beside the point. A person in a running, parked car is one step away from driving, whether the air conditioner is on or off.
Judge Noyes, in rejecting below the “totality of circumstances” test now embraced by the majority, was correct when he said that “any protection afforded individuals who drink intoxicating liquor and then attempt to drive must be narrowly construed in view of the legislative purpose of deterring such individuals from operating their vehicles at all. We recognize the reasoning reflected in Zavala ____ However, Zavala should not be unduly expanded so as to undermine the paramount goal of deterring drunk drivers from ever getting behind the wheel of their car[s] in the first place.” State v. Love, No. 1 CA-CR 93-0525, slip op. at 8 (Ariz.App. June 2, 1994) (memorandum decision) (citations omitted). I believe the rationale of the court of appeals holds true to the legislature’s intent by unambiguously imposing criminal liability upon those who continue to threaten public safety. I would affirm defendant’s conviction.
CORCORAN, J., concurs.. We granted review in the McDougall case, but later dismissed it as improvidently granted for lack of a majority to resolve the issue presented. 174 Ariz. 343, 849 P.2d 1373 (1993).