Is it still considered "operating a motor vehicle" if you are parked in a parking lot and the keys are not in the ignition?

                       Most states have interpreted actual physical control similiarly to Utah.  Utah’s DUI statute states, “A person may not operate or be in actual physical control of a vehicle within the state if the person: (a) has sufficient alcohol in the person’s body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test; (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; (c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.[1]                             In Utah there are several nonexclusive factors for assessing whether a person is in actual physical control of a vehicle. (the Richfield factors) They are:  (1) Whether the person was asleep or awake in the vehicle, when the peace officer discovered them; (2) Where the vehicle is positioned; (3) Whether the vehicle’s motor is running; (4) Whether the person was in the driver’s seat of the vehicle; (5) Whether the person was the sole occupant of the vehicle; (6) Whether the person possessed the ignition key; (7) The person’s apparent ability to start and move the vehicle; (8) How the vehicle got to where it was discovered; and (9) Whether the person drove the vehicle to the place it was discovered.  Utah Courts evaluate these factors under the totality of the circumstances.[2]       Most recently, in State of Utah v. Paul Prawitt, the Utah Court of Appeals applied the Richfield factors in making the determination that defendant had actual physical control of a vehicle.[3]                   In Prawitt, the peace officer discovered the defendant asleep in the driver’s seat of the vehicle.  The vehicle was legally parked on the side of the road, and defendant’s leg was hanging out the window.  The peace officer determined that defendant had actual physical control of the vehicle and was under the influence.  The peace officer then arrested defendant for driving under the influence and open beer containers.                   In Prawitt, the Utah Court of Appeals, applied the Richfield factors to the facts of this case: defendant was discovered asleep in the driver’s seat of the vehicle; The vehicle was legally parked on the side of the road, and the motor was running;  Defendant was the sole occupant of the vehicle;  Defendant appeared capable of operating the vehicle, and it appeared to be capable of being driven; No other persons were present, nor did defendant claim that anyone had left, and defendant indicated to the peace officer that he had driven the vehicle to the location where it was discovered.               The Utah Court of Appeals stated that the inferences arising from defendant’s sole occupancy of the vehicle, his position in the driver’s seat, and his indication that he had driven the vehicle to its discovered location was sufficient to establish actual physical control of the vehicle despite the absence of the other Richfield factors.                   Interestingly, the Utah Court of Appeals noted that there is a compelling argument that intoxicated drivers should be encouraged to pull off to the side of the to sleep it off.  Unfortunately, our decision today may encourage drunk drivers to hedge their bets against getting caught and keep driving rather than pull over and “sleep it off” in their vehicles.    [1] Utah Code Ann. 41-6a-502 [2] Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990) [3] State of Utah v. Paul Prawitt, (2011 UT App 261)