Misdemeanor DUI

Tucson DUI Actual Physical Control

(Last Updated On: October 23, 2018)

DUI in Arizona – Understanding “Actual Physical Control”

Did you know that it’s possible to get a DUI in Arizona even if

…you’re stopped on the side of the road to sleep off the drinks you had at a party?

…your car is parked?

In Arizona, “(i)t is unlawful for a person to drive or be in actual physical control of a vehicle in this state” while under the influence of alcohol, drugs, or a vapor if the person is impaired to the slightest degree.

When people talk about DUI or DWI, the most common image we have is of someone driving down the road swerving and going across lanes of traffic. However, there are cases in Arizona where people have been arrested for DUI even if their car was not moving or running at the time.

So while it’s a very good idea to safely park your car if you’re impaired in some way or had too much to drink, it’s also important to know that you might still be at risk of being arrested for a DUI.

If you are found in your car and you are impaired, a judge or jury will look at the entire situation you are found in by the police officer to decide if you are guilty of driving under the influence.

The Arizona Supreme Court in 2009 decided that a jury or judge should look at the “totality of the circumstances” when deciding whether or not someone is guilty of DUI when not driving but in “actual physical control” of a car.

In this particular case a police officer saw the defendant (Zaragoza) holding on to cars as he staggered through the parking lot toward his own vehicle. Zaragoza entered his car, and the officer pulled up behind him. When the officer shined his flashlight inside the car, he saw Zaragoza in the driver’s seat with one hand on the steering wheel as he inserted the key into the ignition with the other hand. Zaragoza had not yet started the car.

The officer instructed Zaragoza to exit, and he complied, nearly falling as he did so. Zaragoza was extremely intoxicated, with a blood alcohol content later found to be
.357. Upon further investigation, the police found that that his license had been revoked.

Zaragoza testified at trial that he intended to sleep in the car after having an argument with a woman inside the apartment complex and that he only planned to start the ignition to roll down the window and turn on the radio. He denied any intention of driving. The only issue at trial was whether Zaragoza exercised “actual physical control” of his vehicle.

Here’s what the Arizona Supreme Court says about actual physical control of the vehicle from this 2009 case.

“In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s lights were on;
7. Whether the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstance shown by the evidence.

This list is not mean to be all-inclusive. It is up to the jury to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.”

The court emphasized that the driver’s intent is not important to consider. In the case, Zaragoza says that he did not intend to drive but wanted to turn on the car to roll down his window. What he intended to do has no bearing on whether or not he was a threat to himself or others.

If you decide to pull over or not even drive your car because you’re impaired, it’s important to remember that your intention to remain safe and not a threat to yourself or others in your impaired state is not necessarily what will be important to a judge or jury.

It is the facts surrounding the condition you are found in that matters. If the facts support that you had actual physical control of the car and that you posed a threat to the public because you had control or “imminent” control, then you could be found guilty of a DUI.

What does this mean for you?

When you pull over or choose not drive, but stay in your car, consider how your actions will be viewed by a police officer. For example, don’t leave you keys in the ignition. Don’t fall asleep in the driver’s seat. Lay down in the back seat. Make sure your lights are turned off and set your parking brake. If possible, put your keys in a place that is difficult to access. All of these types of actions will work in your favor if you are arrested by the police for DUI for being in actual physical control while impaired.

Can we guarantee that a judge or jury will find you not guilty of the DUI if you do all of these things? Not necessarily. But you certainly increase your changes of being found not guilty. There is a big difference between having your hands and head on the steering wheel, with the key in the ignition and laying down in the back seat of your car with no keys in sight.

So let’s say you go to your car and instead of laying down in the back seat or passenger seat you are found with your head and hands on the steering wheel. It’s important to remember that when you are arrested for DUI working with an experienced DUI attorney who can examine all the facts in your case is critical. There are many available defenses in a DUI case.

You might think you don’t have a chance to get out of the DUI. You might feel overwhelmed by the circumstances and feel like there is no hope for your case. Before you put yourself at the mercy of the legal system, consider consulting with one of our experienced defense attorneys who have worked with others in the same circumstances.

Posted in Arizona DUI Law.

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