The keys weren't in the ignition and he wasn't driving, but a Montrose man was found guilty of DUI anyway. Now 54-year-old Donald Nekolite is appealing that conviction to the South Dakota Supreme Court.
Nekolite’s attorney Michael Unke says his client's desire for a cigarette following a night of drinking led to the DUI arrest and the appeal to the highest court in the state.
"As my client is reaching to retrieve his cigarettes he bumps this gear shift and the vehicle starts to roll backwards," Unke said.
Unke says Nekolite planned to drink at a Canistota bar on September 15, 2012 and his girlfriend was the designated driver. Nekolite and his girlfriend went to get a cigarette at some point that night and Nekolite reached into the passenger side of his pick up to grab the cigarettes from the driver’s side. He bumped the truck into neutral and it rolled into a parked car. He was arrested for DUI and a McCook County judge found him guilty.
Unke is asking the justices to reverse that decision.
"Actual physical control means more than what we have here," Unke said.
The South Dakota Attorney General's Office says the conviction should be upheld because Nekolite was more than three times the legal limit and caused the truck to damage another vehicle.
"Mr. Nekolite was not passed out he was conscious but he caused the vehicle to move which creates more risk to the public in this particular case," Assistant South Dakota Attorney General Kirsten Jasper said.
But Chief Justice David Gilbertson questioned whether this case fits with the intent of South Dakota's DUI laws.
“If he doesn't smoke he doesn't go to the car. The car doesn't move. Is that what the legislature's intending is the fickle finger of fate determines whether you are guilty of this crime or not?” Gilbertson asked.
"I think what the legislature's intent is is to protect the public and Mr. Nekolite determined to reach across the passenger seat to reach cigarettes that were on the driver's side of the vehicle placed himself within reach of the controls," Jasper responded.
Nekolite's attorney says the bottom line is that his client was doing everything right and had no intention of driving and his conviction should be overturned.
It will take the justices several weeks to make a final ruling in this case.