dissenting.
I respectfully dissent because I believe that the defendant was not in “actual physical control” as defined by I.C. § 18-8004(6). I agree with the standard of review as set forth in the majority opinion; however, in my opinion, the trial court’s finding that Woolf was in “actual physical control” of his car was clearly erroneous.
The record reflects additional factual details that help in understanding this case. The vehicle in which the defendant was found was a Subaru Brat. The officer estimated its width at approximately 4’8”. It is a pick-up type vehicle with bucket seats, that is, one seat on the front left side and one seat on the front right side with no rear seat. The divider between the two front seats is level with the seats.
Critical to the resolution of the issue in this case is the position of the defendant’s body. At the time he was observed by Officer Farmer, the defendant was laying over the front seats of the vehicle. The defendant’s right foot was on the brake. His left foot was on the floor board. The defendant’s rear-end was sideways to the front of the vehicle with his right buttock resting on the driver’s seat. The remainder of the defendant’s body was laying to *25the right across the seat divider and onto the passenger seat. The defendant’s right shoulder and head were resting on the right (passenger) seat.
The issue on appeal is whether the defendant was in “actual physical control” as defined by I.C. § 18-8004(6).
The defendant was charged with “control of a motor vehicle while under the influence of alcohol and/or drugs ... in violation of ... Idaho Code 18-8004.” The pertinent part of that statute reads:
18-8004. Persons under the influence of alcohol, drugs or any other intoxicating substances.—
(l)(a) It is unlawful for any person who is under the influence of alcohol, drugs or any other intoxicating substances, or who has an alcohol concentration of 0.10, as defined in subsection (4) of this section, or more, as shown by analysis of his blood, urine, or breath, to drive or be in actual physical control of a motor vehicle within this state, whether upon a highway, street or bridge, or upon public or private property open to the public____
(6) “Actual physical control” as used in this section, shall be defined as being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving. [Emphasis added.]
Many cases can be found from other jurisdictions regarding when a defendant is in actual physical control of a motor vehicle. See for example, Lathan v. State, 707 P.2d 941 (Alaska App.1985); State v. Taylor, 203 Mont. 284, 661 P.2d 33 (1983); Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989); Mason v. State, 603 P.2d 1146 (Okla.Crim.App.1979); Adams v. State, 697 P.2d 622 (Wyo.1985); and ANNOT., Operating Motor Vehicle While Intoxicated 93 A.L.R.3d 7 (1979). However, the authority from other jurisdictions is of limited applicability in light of the specific definition contained in the Idaho statute.
Driving while under the influence has been proscribed in Idaho since the adoption in 1927 of the Uniform Act Regulating the Operation of Vehicles on Highways. 1927 Idaho Sess.Laws, ch. 260, § 2. Later, the Idaho legislature determined that not only driving while under the influence but also being in actual physical control of a motor vehicle while under the influence would be unlawful. In 1983, the legislature added a definition for the phrase “actual physical control” for purposes of both the criminal offense of driving while under the influence and the implied consent statute. These codification are presently found in I.C. §§ 18-8002(7) and 18-8004(6). The definition of “actual physical control” is exactly the same in both statutes.
It is a well-settled rule of statutory construction in Idaho that words of a statute are given their plain, usual and ordinary meaning, in the absence of any ambiguity. Miller v. Miller, 113 Idaho 415, 745 P.2d 294 (1987); Walker v. Hensley Trucking, 107 Idaho 572, 691 P.2d 1187 (1984); State v. Moore, 111 Idaho 854, 727 P.2d 1282 (Ct.App.1986). As a general rule, “[i]t is well settled that penal statutes are subject to a strict construction. More accurately, it may be said that such laws are to be interpreted strictly against the state and liberally in favor of the accused.” 73 AM. JUR.2d Statutes, § 293 (1974). Idaho courts have followed the general rule in holding that criminal statutes are strictly construed in their substantive elements and in their sanctions. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980); State v. McKaughen, 108 Idaho 471, 700 P.2d 93 (Ct.App.1985).
In State v. Thompson, supra, 101 Idaho at 437, 614 P.2d at 977, the Supreme Court followed the principles set forth in State v. Hahn, 92 Idaho 265, 267, 441 P.2d 714, 716 (1968):
A statute defining a crime must be sufficiently explicit so that all persons subject thereto may know what conduct on their part will subject them to its penalties. [Citations omitted.] A criminal statute must give a clear and unmistakable warning as to the acts which will subject one to criminal punishment, and courts are without power to supply what the legislature has left vague. [Citations omitted.] An act cannot be held as crimi*26nal under a statute unless it clearly appears from the language used that the legislature so intended. [Citations omitted.]
The Idaho appellate courts have considered the legislative definition of “actual physical control” in three opinions.
In Matter of Clayton, 113 Idaho 817, 748 P.2d 401 (1988), the Idaho Supreme Court determined that the defendant was in the “driver’s position” pursuant to I.C. § 18-8002(7) where the defendant “was sitting in the driver’s seat behind the steering wheel with the engine running and the lights on.” 113 Idaho at 819, 748 P.2d at 403.
In State v. Cheney, 116 Idaho 917, 782 P.2d 40 (Ct.App.1989), this Court reviewed a conviction under I.C. § 18-8004(1). A portion of that decision dealt with the term “actual physical control.” In that case, “[t]he vehicle’s lights were on and the engine was running. Cheney was seated in the driver’s seat of the automobile with his eyes closed and his head resting on his chest.” 116 Idaho at 917, 782 P.2d at 40. Cheney argued that the vehicle was inoperable at the time of his arrest due to the loss of transmission fluid. This Court found that the evidence did not support the contention that the vehicle was inoperable and therefore did not address that issue. Further, the Court found that the evidence adduced at trial, e.g., Cheney being in the driver’s seat of his automobile, asleep, with the lights on and the motor running, supported his conviction.
In Matter of Vogt, 117 Idaho 545, 789 P.2d 1136 (1990), our Supreme Court reviewed the “actual physical control” definition of I.C. § 18-8002(7) which again is identical to I.C. § 18-8004(6). The Supreme Court in that case provides us with guidance in analyzing the present case. Vogt had been a passenger in a vehicle driven by another person. Because the driver did not know where Vogt lived, he had left Vogt sleeping in the front seat of the vehicle with the motor running and the heater on. The position of Vogt’s body in the front seat of the vehicle was the subject of conflicting evidence during the evidentiary hearing to determine whether Vogt’s driving privileges should be suspended pursuant to I.C. § 18-8002.
The magistrate ordered that Vogt’s license should be returned to him finding that:
although “the defendant was behind the wheel,” Deputy Sharp did not have probable cause to believe that Vogt was in actual physical control of the pick-up and “had intended to operate and drive that vehicle” because Vogt was unconscious.
117 Idaho at 546, 789 P.2d at 1137. In affirming the magistrate’s decision, the district court stated:
Here, the Magistrate found: Vogt was at all times a passenger; Vogt neither intended to drive nor to exert any physical control over the vehicle. This finding of no intent is critical____ [The] evidence shows Vogt was a passenger, who had not previously and did not intend at any time to exercise physical control over the vehicle. The facts indicate Vogt was either not driving or was unconscious until Sharp woke him up.
Id.
On the issue before the Supreme Court, it held “that the State is not required to prove that a person had any intent to drive in the context of a driver’s license suspension hearing under I.C. § 18-8002.” 117 Idaho at 546, 789 P.2d at 1137. The Supreme Court went on to state:
Thus, we hold that the only inquiry before the judge in a driver’s license suspension hearing under I.C. § 18-8002 is whether the person is in the “driver’s position” of a vehicle with the motor running or with the vehicle moving.
Id. The Supreme Court remanded the case to the magistrate because:
The magistrate did not set forth any finding of fact as to the position of Vogt’s body, or whether it was actually in the driver’s position. Therefore, we must remand for a finding on that issue.
Id.
The Supreme Court noted that no findings of fact were made on the position of the driver’s feet or whether Vogt turned *27off the ignition with his right hand or his left hand tending to indicate whether Vogt was “sitting squarely behind the wheel, in the driver’s position. ” [Emphasis added.] 117 Idaho at 547, 789 P.2d at 1138.
In the present case, the critical facts are not in dispute. The defendant’s feet were under the steering wheel with his right foot on the brake pedal and his left foot on the floor board. The defendant’s rear-end was sideways on the front seat with his right buttock resting on the driver’s seat. The defendant was not sitting in the driver’s seat behind the steering wheel. The defendant’s upper body was laying across the seat divider with his right shoulder and head resting on the passenger seat.
I agree with the policy set forth in the majority opinion; however, I.C. § 18-8004 is a penal statute and must be construed strictly. Applying that strict construction to the facts before this Court and giving the definition of I.C. § 18-8004(6) its plain, usual and ordinary meaning, I conclude that Woolf was not in the “driver’s position.”
Therefore, I would reverse the decisions of the magistrate and the district court and remand with direction that the charge against the appellant be dismissed.