Caple v. Department of Revenue, Motor Vehicle Division

Opinion by

Judge DAVIDSON.

The Department of Revenue appeals from the district court judgment reversing its revocation of the driver’s license of plaintiff, David W. Caple, for refusing to submit to testing as required by the express consent statute. The sole issue on appeal is whether plaintiff was “driving” within the meaning of the express consent statute. We conclude that plaintiff was driving and, therefore, reverse and remand.

The essential facts are not in dispute. At approximately 1:45 a.m. on October 6, 1989, a police officer found plaintiff alone in his vehicle in a parking lot of a…