According to section 28-1381(a) of the Arizona Revised Statutes, in order to be charged with driving under the influence of alcohol or drugs in Arizona, an individual must be deemed to have been in actual physical control of a vehicle while under the influence of alcohol or drugs, and is impaired with a blood alcohol content (BAC) of 0.08 or greater.
By legal definition, actual physical control of a vehicle means to be physically in or on the vehicle, and have the capability of operating that vehicle, regardless of whether or not the vehicle is in operation at that time.
In some instances, individuals have been charged with DUI after having their cars parked in a parking lot, on the side of the road, or otherwise not actually moving. The prosecution does not need to prove that the driving was driving the car – just that that the driver was in actual physical control of the vehicle. If the driver is sitting in the driver’s seat and the keys to the vehicle are either in the ignition or are readily available to the driver, he or she can be considered to be in actual physical control of the vehicle.
Determining actual physical control is usually based on an assessment of the circumstances as a whole. Some of the factors that may be taken into account include:
• Whether keys were in the ignition;
• Whether the engine was running;
• Whether the driver was in the driver’s seat;
• Whether the air conditioner was on;
• Whether the vehicle was not in “park;” and
• Whether the vehicle was parked on the travel portion of the roadway.
These factors can also be used as indicators that may indicate control, and may be used as evidence against the suspect by the prosecution. Whether a driver had control is an element of a DUI charge, and prosecutor must prove it beyond a reasonable doubt.
Individuals who are not familiar with the elements of a DUI charge are often shocked when they are arrested for DUI, even when they were not actually driving the vehicle. Familiarizing yourself with the intricacies of what constitutes as actual physical control can help you and your attorney craft a stronger defense. If an attorney is able to prove that there was a lack of actual physical control in your case, he or she can potentially have your charges reduced or dropped all together.
James Novak is a devoted Tempe DUI defense attorney who’s objective is to ensure that each of his clients receive the strongest defense possible. Novak uses a systematic approach and goes into each case with a strong understanding of the factors that can potentially have a significant impact on the outcome of the case. Novak serves his Maricopa County clients in First DUI, Second DUI, DUI with drugs, and other DUI and criminal cases.