specially concurring.
In my view it seems that the magistrate trier of fact has already come extremely close to making the very determination which this Court directs be made on remand. That direction is to make a finding as to the position of Vogt’s body, which it is assumed means all of the component parts, when Officer Sharp arrived on the scene. When the magistrate made the decision, based on the evidence before him, that “Vogt was a passenger, who had not previously and did not intend at any time to (drive),” implicit therein was the finding that he was not in the driver's seat, and also that Vogt was having nothing to do with the various mechanisms which collectively go into the operation of an older Studebaker truck, i.e., the foot brake, the clutch, the accelerator, and the gear shift. The majority properly utilizes the provisions of I.C. § 18-8002(7) as the sole criterion by which to determine that Vogt was in “actual physical control”1 of the Studebaker truck. That provision defines “actual physical control” as being in the driver’s position with the motor running.2 The motor had been left running by the driver who had departed.
The magistrate clearly was entitled to find that Vogt had exhibited no intent to operate the truck if it appeared that Vogt’s two legs and two feet were not simultaneously positioned to operate both the brake and clutch pedals, and also if his arms and hands were not positioned to control the steering wheel and the gear shift lever. Implicit in the magistrate’s finding of no intent to drive are the findings of those facts to which Vogt testified, and which are accurately recounted in the *548majority opinion. Even had Vogt not been asleep or unconscious, any statement by him to that effect would have been superfluous to the apparent and undisputed facts.
The majority today uses this occasion to announce in ringing terms that under I.C. § 18-8002 any person who is found in the driver’s position of a motor vehicle with the motor running shall be deemed (i.e. considered, presumed) to have given his consent to a sobriety test That declaration is clear and unequivocal, and no one should quarrel with it. Henceforth, the person fully occupying the operator’s seat of a vehicle the motor of which is running, will know by reason of the court’s opinion that he has given his consent to sobriety testing, which he can refuse, but if he refuses he may see his license suspended for 180 days. The fact that he did not intend to operate the vehicle is now of no consequence.
The question remaining to be answered, however, is whether this hard and fast rule which the Court makes in ruling intent to .be no defense should be applied retroactively to Vogt. The generally accepted rule is that it should not. For that reason I would affirm the two judges who in fairness did not penalize Vogt for conduct which was thought to be commendable in State v. Clayton, 113 Idaho 817, 748 P.2d 401 (1988) (Bistline, J., specially concurring).
. This language is unusual. Any person driving, or about to drive, is in physical control. Likewise, such person is in actual control.
. There is no suggestion that the vehicle was moving, or that either of the two occupants were moving.