The Maryland Court of Special Appeals has upheld the conviction of a Rockville man charged with driving while intoxicated, even though he was not driving at the time of arrest.

James Grafton Gore was arrested for drunken driving in December 1985 after he passed out in his car in a 7-Eleven parking lot. A police officer found Gore sleeping with the key to his car in the ignition.

That was enough for a Montgomery County Circuit judge to rule that Gore would indeed fall into the drunken driving category, and he was given a suspended sentence.

The Court of Special Appeals upheld that ruling Friday, saying the evidence was strong enough to show that Gore had been driving, even if the arresting officer never saw him driving.

Court records indicate a Montgomery County policeman was dispatched to the 7-Eleven parking lot in Bethesda about 1:30 a.m. on Dec. 19, 1985, to check on a man reported asleep behind the wheel of his car.

When he arrived, the officer found Gore sound asleep, with the car's engine off but the key in the ignition on the "on" position. The car was in gear, the alternator light shone red on the dashboard, and the hood was still warm, according to court documents.