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Realizing that he had had too much to drink one summer night in 1987, James M. Walker, Payson, pulled into the Richfield Quality Inn to sleep it off.

But there were no vacancies, so he returned to the parking lot and sacked out in his truck.A while later, he was rousted by a Sevier County deputy who had noticed that the truck's headlights were on. Walker was arrested and subsequently convicted of being in physical control of a vehicle while intoxicated.

He appealed, arguing that the pertinent Richfield ordinance was invalid and that - because he was asleep - he didn't have actual physical control of his truck.

While acknowledging that Walker had made a "compelling argument" that drunken drivers should be encouraged to do what he had done, Utah's Court of Appeals has ruled that DUI laws deserve more than "mere lip service."

"The legislative intent behind drunken-driving laws is to protect the public by apprehending intoxicated drivers before they kill or maim someone," Judge Regnal W. Garff said in an opinion released this week.

The judge said even though Walker was asleep, he was still capable of driving away upon awakening.

"Further, if he had prior control and was responsible for the car being in its present position - especially if the keys were still in the ignition and the headlights were on - he is ready to go, and the potential for tragedy is present."

And that is what the Legislature specifically wanted to prevent when it enacted laws prohibiting a drunken driver from having physical control of a vehicle, Garff said.

"To focus exclusively upon the fact that the driver was not sitting in the driver's seat or that he was asleep and to ignore other relevant factors . . . is illogical," Garff added.

Garff said the court applied the law "in a manner consistent with the public policy that intoxicated motorists should be kept out of their vehicles except as passengers or passive occupants, and should be apprehended before they strike."

Walker also attacked Richfield's ordinance on the grounds that it was inconsistent with state law. The city ordinance had failed to incorporate a state amendment requiring blood alcohol content to be determined by a chemical test within two hours after the alleged operation or physical control of a motor vehicle.

The appeals court agreed that there were differences, but "we find that those differences do not amount to an invalidating inconsistency." Besides, the test conditions of the state amendment were included in another provision of the city ordinance, Garff noted.