This section contains the nature of the case and procedural background.

Police found D unconscious in the driver's seat of a Chevrolet Cavalier station wagon with an open can of beer between his legs at 3:45 a.m. The car was parked just outside the white fog lines but was still on the road pavement. The engine was off. The keys were in the ignition and the engine was still warm. D was alone but there were five full cans of cold beer on the passenger seat and one empty can in the back. The police found no one else in the area. D failed sobriety tests of reciting the alphabet and counting backward. D also told the deputies that he was coming from a neighboring county, where he had been working, that he had started drinking at 6:00 p.m. that night, and that he had consumed six beers. Both deputies testified without objection that D never denied being the driver of the Cavalier. Blood samples resulted in 0.21 and 0.22 grams per one hundred milliliters of blood. D acknowledged that D was drunk and belligerent and that D's driver's license was revoked, but he also claimed D was not operating the vehicle. Defense counsel theorized that someone else had driven defendant to where the police found him but he presented no evidence to support this theory. D did not testify. D was convicted and appealed.

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