Blog Post

Can I get a DUI if I was not driving the car? 10 Factors to consider.

Can you get arrested for DUI when you were found asleep at the wheel and not driving? In this post, we discuss this topic, and how the State needs to prove actual physical control. This is required in any DUI case!

Folks, I’ve been doing DUI defense for over 30 years. Some DUI laws have changed, some have not. For the most part, getting a DUI in Arizona has been harsh over the years, and it continues to be that way. For more on DUI consequences, click here.

One of the misconceptions I hear from clients involves driving the car in a DUI case. Many Arizonans incorrectly think that they have to be actually physically driving their car in order to be cited with a DUI. I’m here to tell you that’s not the case. I’ve seen cases where a driver who simply sat in their driver’s seat while smelling like booze was enough to justify a DUI arrest.

For more on how the police detect DUI’s, click here.

Arizona DUI's require proving actual physical control. But what is it?

To be clear, Arizona DUI laws prohibit being in actual physical control of a car while impaired. While actual physical control is not specifically defined to an exact “T”, Arizona courts will often rely on the same re-occurring factors to determine whether a person had the intent to drive while intoxicated. Here are those 10 factors:

  • Whether the windows were up or down
  • If the heater or air conditioner was on
  • Where the vehicle was stopped
  • Whether the headlights were on
  • Whether the vehicle was running or whether the ignition was on
  • Where the driver was found, and in what position
  • Where the keys were located
  • The weather conditions and time of day
  • Whether the driver voluntarily pulled over
  • Whether the driver was awake or asleep

In applying these factors, the Court will often ask: did the driver had the immediate ability to drive away? If the Court answers “Yes” to that question, then the Court then finds that the driver had actual physical control.

The Court applies these factors to determine if the driver had the immediate ability to drive away. If the Court believes that the driver had the ability to immediately drive off, then the Court often finds that the driver had actual physical control.

According to the Arizona Case Law, a driver paased out with his engine running had actual physical contact.

Consider this example. In Phoenix, a driver was found by the police, passed out in the middle of a busy street. The driver was sitting upright in his vehicle, with his hands on the wheel. The lights were on, and his engine was running. In using the factors above, the Court found that the driver had actual physical control. The Court was concerned with the driver’s ability to wake up and drive off. Because of this, the Court convicted the driver of a DUI. This was the case of State v. Webb.

In another case, a driver found unconscious with the engine off had no physical control.

Compare that case with this example. Similar to the case above, a driver was found to be unconscious in his truck, which was found pulled off the side of an Arizona highway. When the police made contact, the engine was off, but the keys were in the ignition, in the off position. The driver awoke, asked questions regarding his driving, then cited for a DUI.

The Court in that case, using the same factors above, determined that the driver ceased driving the truck. In other words, the driver “relinquished” his actual physical control of the vehicle. Thus, the driver was acquitted of the DUI.

This was the case of State v. Zavala.

Final Thoughts

Sadly, even if the factors above align in your favor, you may still be arrested for a DUI. The consequences of a DUI are huge, and should not be taken lightly. I’ve challenged DUI charges for lack of actual physical control.

If you were charged with a DUI, contact me at (480) 545-0700. Visit Chuck for more. Your freedom is too important to gamble with. You have rights, know them.

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