Can You Get A DUI If Your Not Driving?

Most people assume that you actually have to be driving to be charged with driving under the influence. In Arizona, that’s not true. You can get a DUI if your not driving because the charge of driving under the influence in Arizona only requires that a person is either driving a vehicle or is in actual physical control of a vehicle.

DUI charges under the “actual physical control” theory are pretty common in Arizona. Usually, police find someone drunk inside of a vehicle -- sometimes passed out or sleeping behind the wheel -- and decide to charge them with DUI because they believe the person is in actual physical control of the vehicle.

Arizona Actual Physical Control Factors

Simply being drunk inside a vehicle while you’re sitting in the driver’s seat may be enough to prove a DUI charge. There are a number of factors that the law says should be considered in deciding whether someone is in actual physical control:

• Whether the vehicle was running or the ignition was on
• Where the keys are located
• Where and in what position the person was found in the vehicle
• Whether the person was awake or asleep
• Whether the vehicle’s lights were on
• Whether the vehicle was stopped or parked and where
• Whether the driver had voluntarily pulled off the road
• The time of day, the weather conditions
• Whether the heater or air conditioner was on
• Whether the windows were up or down
• Any explanation of the circumstances shown by the evidence.

This is not an all-inclusive list, so any other factors may also be considered.

It is usually the jury that decides whether you are in actual physical control and are guilty of DUI if your not driving. Ultimately, jurors should be instructed that someone is not in actual physical control unless they actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired. It’s not your subjective intent that matters, only the objective facts. So if the vehicle is stuck or has a mechanical problem that makes it immobile, that is a pretty good defense to an actual physical control DUI. If the vehicle can't be moved, then controlling it probably doesn't pose a threat to the public.

If you've been drinking, it’s better to sleep in your car than to drive it. However, if you want to make sure that you’re not charged with DUI, you probably shouldn’t sleep in your car either. If you need to sleep in your car, remember the actual physical control factors and think about how a judge or jury might look at the facts. Laying down in the back seat after turning the engine and lights off, for example, will make it much more difficult to prove actual physical control.

* This blog is published by Tucson DUI and criminal defense lawyer Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.