                                 NO.           92-182

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1992



CITY OF HELENA,
            plaintiff and Respondent,
     -vs-
JOHN THOMPSON,
                                                                              SEP 22 1992
            Defendant and Appellant.



APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark,
                 The Honorable Jeffrey M. Sherlock, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 J. Mayo Ashley, Attorney at Law, Helena, Montana
            For Respondent:
                 Robert J. Wood, City Attorney, Helena, Montana


                                         Submitted on Briefs:                 July 30, 1992
                                                                   Decided:    September 22, 1992
Filed:
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                                         Clerk
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Justice Fred J. Weber delivered the Opinion of the Court.

     After a bench trial in City Court, defendant, John Thompson,
was found guilty of driving under the influence of alcohol (DUI).
Defendant appealed his case to the District Court for the First
Judicial District, Lewis and Clark County, where he was found to be
in @@actualphysical controlw of the vehicle and was again found
guilty.   Defendant now appeals to this Court.   We affirm.
     The only issue raised was whether defendant was in "actual
physical controlw1 the vehicle when he was arrested.
                 of
     After drinking for several hours and becoming admittedly
intoxicated, defendant left the Gold Bar and returned to his truck.
Officer Davis, who was on routine patrol, noticed a truck with the
brake lights on. He testified he heard the vehicle start and could
see smoke or exhaust emanating from the tail pipe.            He also
testified that he heard the engine running loudly, backfiring and
running roughly, and then the engine died.       He then heard the
engine being attempted to be started again. He noticed one person
in the truck, who slid from the driver's seat across to the
passenger side door.   He then saw the person exit the truck and
begin to stagger down the street.      Defendant was subsequently
arrested and charged with DUI.
     Defendant maintains that he was not in actual physical control
of the truck. He testified he never tried to start the engine, but
only entered the truck to retrieve some property. He admits he was
too intoxicated to drive.
     The District Court found defendant to be in actual physical
                                 2
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control of the vehicle. It relied on State v. Peterson (1989), 236
Mont. 247, 769 P.2d 1221, in which the defendant was found to be in
control of his vehicle when the car was found off the road in a
ditch, with the defendant lying across the front seat with the keys
in his pocket.   The car was not running.   In Peterson we said:
          Just as a motorist remains in a position to regulate
     a vehicle while asleep behind its steering wheel, so does
     he remain in a position to regulate a vehicle while
     asleep behind the steering wheel of a vehicle stuck in a
     borrow pit. He has not relinquished regulation of or
     control over the vehicle. It does not matter that the
     vehicle is incapable of moving. Movement of a vehicle is
     not required for 'actual physical contro1.I
Peterson, 769 P.2d at 1223.
     We conclude that the rationale of Peterson is applicable here.
We hold that the defendant was in Ivactualphysical controlvv his
                                                           of
truck.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.



We Concur:
