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Attorney: Montrose man needs to drive vehicle for DUI

VERMILLION -- A Salem attorney argued Wednesday that a 2013 drunken driving conviction in McCook County should be overturned because the person wasn’t in “actual physical control” of the vehicle.

The case was one of three heard in front of the South Dakota Supreme Court in Vermillion.

In September 2012, Donald Nekolite, of Montrose, drove his vehicle to a dance with his girlfriend, who was along as a designated driver. Nekolite became intoxicated, reached into his vehicle for cigarettes and bumped the stick shift.

The stick went into neutral and the vehicle rolled back into another vehicle. Keys were not in the ignition and the vehicle was not running.

In 2013, Judge Patrick Kiner found Nekolite guilty of drunken driving for being in actual physical control of the vehicle.

Nekolite’s attorney, Michael Unke, argued Wednesday that Nekolite was not in physical control because Nekolite was never fully in the vehicle.

“I think the court should base its decision on actual physical control,” Unke said, because Kiner didn’t find any facts as to whether Nekolite was driving.

Unke said Nekolite didn’t operate the vehicle in a “usual and customary manner,” which he said amounts to sitting behind the wheel and having full access to all mechanisms used to operate a vehicle.

The original case also included testimony from a McCook County deputy, who Unke said didn’t do a complete job of investigating the scene. Unke suggested the Supreme Court justices disregard the deputy’s testimony.

Assistant Attorney General Kirsten Jasper said Nekolite’s conviction should be affirmed because he was obviously in actual physical control of the vehicle.

“The cigarettes were found on the floor of the driver’s side of the vehicle by the clutch,” she said. “Nekolite, in order to retrieve these, he would have had to lean all the way over to the driver’s side to the floor. In the process, he bumped the gear stick and popped it into neutral.”

She argues Nekolite’s intent of having a designated driver does not apply.

She said Nekolite was not only in actual physical control of the vehicle because he operated one of the controls, but that he also drove it because his action caused the vehicle to move.

Jasper also said a person doesn’t need to operate a vehicle in the “usual or customary manner” for it to be considered driving in this case. Actual physical control is considered actual operation.

“Which he did,” Jasper said, referring to Nekolite bumping the gear shift and the vehicle rolling back.

There is no timeline for the Supreme Court to issue its opinion.