When people envision a charge of driving under the influence (DUI), they usually picture a person driving a car or truck down the road while impaired by alcohol or drugs. Interestingly, the law in Arizona says a bit more about what a DUI charge might involve. A.R.S. 28-1381A states that it is against the law not only to drive while under the influence, but also to be in “actual physical control” of a vehicle.” The next question, of course, is what that phrase means.

What we find is that the answer is not always simple. Here are some of the considerations for a jury in determining whether an allegedly impaired person is in actual physical control of their vehicle within the meaning of the statute:

  • Whether the engine was running?
  • The location of the key.
  • The location of the driver at the time he or she was found in the vehicle.
  • Whether the person was awake or asleep.
  • The location of the vehicle, that is, where it was stopped.
  • Whether the headlights were on or off.
  • Whether the heat or air conditioner was running.
  • What was the time of day?
  • Did the defendant provide an explanation of the circumstances shown by the evidence?

These are merely examples of some of the factors that a jury may consider when deliberating on the issue of actual physical control. The test, in broad terms, involves an examination of the totality of the circumstances, and a determination of whether the defendant’s current or anticipated control of the vehicle presented a danger to himself or others at the time.

In a recent case handled by this office, a man was charged with DUI for being in actual control of a vehicle with a blood alcohol content in excess of 0.20. He was charged with DUI, DUI with a BAC of 0.08 or greater, and super extreme DUI. The facts of the case were fairly simple. The man was parked on the side of the road and was texting his friend to come get him because he had been drinking and recognized that he should not be driving. When the police arrived, they apparently placed their own spin on the situation, and assumed the man was going to drive, even though they admitted that when they approached, he was texting and not driving. The jury was not convinced that the state had met its burden and found the defendant not guilty on all counts. Just another example of how the right DUI lawyer can make a difference in your case.

Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028


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