A suspicious call came in regarding a vehicle parked in the field in front of a church. The first officer on scene and second officer on scene approached the vehicle which had hit a curb and drove off the road to the final resting point. The vehicle missed a sign and a big tree by inches and came to a final stop in the grass. There were tire track marks leading from the road to the location where the car was parked. The vehicle was in park and the defendant was laying in the drivers seat with the engine running and the lights on. The officers banged on the window, yelled the defendant’s name and even shook the vehicle to try and wake up the defendant. One of the officers even reached in and shook the defendant to try and wake him up. At that point, the officer reached in to turn off the engine and was going to call Fire Rescue. The Defendant then woke up and the officers smelled alcohol, noticed red glossy eyes and that the defendant had a flushed face. The Defendant was asked to submit to roadsides where he performed extremely poorly. All roadsides were captured on camera. The Defendant was arrested and taken to the Breath Facility where he refused to give a sample of his breath. The Firm took the case to trial and argued that the Defendant (1) was not driving and (2) did not have the “capability” to operate the vehicle at the time the officers arrested him and was therefore not in “actual physical control” of the vehicle. The jury came back with a verdict of Not Guilty.