11|2022
Is No Actual Physical Control a DUI defense? A common question asked is what are possible defenses to a DUI in Arizona. Generally, DUI prosecutions may be difficult to defend against, because law enforcement officers are typically the eyewitnesses. And for the most part, people believe police officers are honest. Nevertheless, defenses may be present, and it is important to consult with an experienced DUI attorney to identify them. Less experienced attorneys may miss the issues or may not frame them correctly. Whether a person is in Actual Physical Control (“ACP”) of a motor vehicle is a factual determination. And it requires attention to detail.
No Actual Physical Control as an Arizona DUI Defense
There are multiple DUI defenses in Arizona. The defense that a person was not in actual physical control of the vehicle is an absolute defense that may result in a jury acquittal. Indeed, law enforcement will likely make an arrest in any scenario a person is inside a vehicle whether in motion or not. And the State will typically take the position that it is up to a jury to determine APC.
All of Arizona’s DUI statutes require that a person either be driving or in APC of a motor vehicle. Driving is self-explanatory. The defense asserts no APC in non-driving scenarios. It is a gray area that an experienced attorney may be able to identify and effectively exploit.
Typical No Actual Physical Control Scenario in a DUI Case
These situations most often arise when a person is sleeping in their vehicle. Indeed, a person may drive to a bar to meet friends or co-workers. And if things escalate, that person may decide to sleep in their vehicle rather than drive. Or, a common scenario is one may drive a short distance and then pull off the road.
Law enforcement is typically notified by a concerned citizen or perceptions during routine patrol. The State’s interest here is a person could be dead or injured inside the vehicle. As such, law enforcement will conduct a “welfare check” on any occupant in a vehicle. During these welfare checks law enforcement will immediately be looking for any signs of impairment or DUI clues, including the odor of alcohol. Indeed, it is not uncommon for a person to awaken exhibiting bloodshot eyes, confusion, or lethargic movements. Those symptoms are explainable. But the odor of alcohol coupled with these symptoms, or even alone, will always cause law enforcement to investigate and likely make an arrest to let the courts figure out the ACP issue.
How Do Courts Determine Actual Physical Control in DUI Cases
In determining whether a person was in APC of a vehicle, a trier of fact will look at the “totality of the circumstances”. In Arizona, the trier of fact in any DUI case is a jury. Arizona appellate cases have laid out factors for juries to consider when determining APC. This is a determination of whether the driver was simply using the vehicle as a stationary shelter or whether they actually posed a threat to the public in exercising imminent APC of the vehicle.
Factors Considered to Determine Actual Physical Control
Some of the factors a trier of fact considers to determination APC include:
- Whether the vehicle was running or the ignition was on;
- Key Location;
- Where and in what position the driver was found in the vehicle;
- Whether the driver was awake or asleep;
- If the vehicle’s headlights are on;
- Where the vehicle was stopped (in the roadway or legally parked);
- Whether the driver had voluntarily pulled off the road;
- Time of day and weather conditions;
- If the heater or air conditioner was on;
- Whether the windows were up or down;
- Any explanation of the circumstances advanced by the defense.
This is not an exhaustive list but just some of the factors courts to be considered by the trier of fact. Indeed, these are factual determinations to be made. Indeed, it is clear the intent of the appellate courts is to require the State to prove the driver posed a threat to the public or using the vehicle as a stationary shelter. In these cases, including sleeping in the vehicle and disabled vehicle cases, the trier of fact may also consider how the vehicle came to its resting position.
DUI cases involving issues as to whether a person is driving or in actual physical control of a motor vehicle require intensive factual determinations. An investigation into this defense may require interviews to be conducted on arresting and investigating officers as well as any witnesses.
Huss Law, PLLC As Your Arizona DUI Attorney
The potential DUI defense of no driving or no actual physical control of a motor vehicle is important to identify and investigate immediately. Indeed, it is important to consult with and retain an experienced Arizona DUI attorney like Jeremy Huss. Mr. Huss has trained law enforcement on DUI investigations and is as knowledgeable as any DUI attorney in Arizona. If you are under investigation for a DUI call Huss Law immediately.
