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Alabama’s DUI Offense: What exactly is “Actual Physical Control”?

Probably no single traffic code statute has been tried in court more often, and litigated on appeal, than Alabama’s driving under the influence (DUI) statute. The present statute, found in Code of Alabama, 1975, section 32-5A-191, was enacted during the 1980 legislative session and became effective on August 16, 1980. The previous statute, titled ‘Driving While Intoxicated’ or ‘DWI’, was originally enacted in 1927 and remained in effect until the 1980 revision of the Alabama traffic code. One of the distinguishing features of the prior DWI statute was the absolute requirement for the vehicle to be “driven" or in actual mode of operation, in some form or fashion. Unless the arresting officer could testify that that the motorist was seen “driving" the vehicle, no conviction could be achieved. I recall as a young trooper prior to the 1980 code revision that when encountering a “passed out" or apparently asleep intoxicated motorist behind the wheel, unless the vehicle actually moving at the time of the arrest, a good defense lawyer could always claim that the operator was not “driving" the vehicle, and thus, not guilty of the offense of DWI.

We would resort to a number of ruses to get around this requirement, to include waking up the intoxicated subject, yell at him, and tell him to “get out of here!" Then, as soon as the driver put the vehicle in gear, we would reach in and turn off the ignition. You had to be fast so as not to get entangled by the steering wheel! The 1980 code revision changed all that and only required the arrested subject be “in actual physical control" of the vehicle. But, as is often the case when legislation is proposed and enacted, no definition of this new term was provided, leaving it up to the courts to decide the limits of “actual physical control." Under the Code of Alabama, 1975, section 32-5A-191(a)(1) is defined as: “(a) A person shall not drive or be in actual physical control of any vehicle while: (1) There is 0.08 percent or more by weight of alcohol in her or her blood; …" The term “actual physical control" is defined by judicial decision. The leading case that defines “actual physical control" is Cagle v. City of Gadsden, 495 So. 2d 1144 (Ala. 1986).

Justice Adams writing for the Court stated: “In Alabama, there are two ways to prove that a person has been driving under the influence of alcohol. The first way is through direct evidence, such as the testimony of an eyewitness, normally the arresting officer. The second method is through the use of circumstantial evidence to prove that the person, although not actually seen driving the vehicle, had “actual physical control" over it. “Actual physical control" is defined in Key v. Town of Kinsey: ‘Actual physical control’ is the exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment." The Alabama Supreme Court held in Cagle v. City of Gadsden in determining whether motorist, who was not actually seen driving vehicle, had “actual physical control" over vehicle in DUI prosecution, a court should use a totality-of-the-circumstances test, abandoning the test of Key v. Town of Kinsey, 424 So.2d 701 (Ala.Cr.App. 1982) as “too restrictive." Under Key, the prosecution had to prove:

1) active or constructive possession of the vehicle’s ignition key by the person charged or, in the alternative, proof that such a key was not required for the vehicle’s operation;

2) position of the person charged in the driver’s seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move; and

3) a vehicle that is operable to some extent. In the Cagle case, the evidence was insufficient. When the arresting officer arrived at the scene he observed the defendant sitting in a pickup truck which was against a power pole which was cut in half. The officer obtained basic information from the defendant but did not ask if the defendant was the driver of the truck. Clearly, the inoperability of the vehicle made the arrested subject not in “actual physical control" of the vehicle. A survey of all Alabama cases on point has held that there must be the present ability to place the vehicle in operation before a person may be lawfully arrested for DUI.

The following applicable cases are examples: •Loftin v. City of Montgomery, 480 So.2d 606 (Ala.Cr.App. 1985): Motorist who, at time officers discovered his truck stopped partially on a highway, was slumped on the steering wheel, with the engine running, his foot apparently on the clutch, and the gearshift in the neutral position, was in actual physical control of the vehicle. •Ex parte Robinson, 494 So.2d 159 (Ala. 1986), aff’d Robinson v. City of Abbeville, 494 So.2d 155 (Ala. 1985): Evidence was sufficient, although admittedly a close case, under the test stated in Key: Where officer testified that he observed the defendant preparing to exit the car, that radiator was boiling over, and that the defendant was attempting to lift the hood, the evidence was sufficient to show that vehicle was operable to some extent, despite ignition having been broken and screwdriver or knife being necessary to start car, even though no screwdriver or knife was found in the car or on the defendant. •Mester v. State, 755 So. 2d 66 (Ala. Cr. App. 1999): In an arrest situation where the operator was steering an inoperable vehicle, being pushed from behind by a second vehicle, gave the operator “actual physical control" over the vehicle, despite lacking a propulsion system. •Farley v. City of Montgomery, 677 So.2d 1251 (Ala.Cr.App. 1995):

The appellant testified that on the night of his arrest he had been drinking and that he had driven his Jeep to the location where the police found him. The officers found the appellant apparently unconscious in the driver’s seat with the vehicle’s engine running. There was sufficient evidence in this case for the jury to find that the appellant was in “actual physical control" of his vehicle while under the influence of alcohol. •Barnett v. State, 671 So.2d 135 (Ala.Cr.App. 1995): “It is not necessary to be actually driving in order to be in actual physical control of a vehicle. “Actual physical control" is exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of motor vehicle at the moment." 671 So. 2d at 137. •Long v. State, 650 So. 2d 621 (Ala. Cr. App. 1994): Proof defendant was asleep behind wheel of car parked with two wheels on the road, and that the brake lights were flickering on and off, was sufficient evidence of actual physical control. •Sloan v. State, 574 So.2d 975 (Ala.Cr.App. 1990): The defendant was in actual physical control. He was sitting behind the wheel of an automobile with the engine running. The car was in the driveway of a residence, 15 to 20 feet off the roadway. •McLaney v. City of Montgomery, 570 So.2d 881 (Ala.Cr.App. 1990): Evidence sufficient to show that the defendant was in actual physical control of vehicle: Defendant’s vehicle was stuck on wooden railroad tie in middle of road at time of her arrest.

Defendant was attempting to drive off tie by alternately placing her car in forward and reverse. •Briggs v. City of Huntsville, 545 So.2d 167 (Ala.Cr.App. 1988), cert. quashed, 545 So.2d 171 (Ala. 1989) Evidence sufficient under Cagle: defendant involved in three car collision, admitted to officer that he had been drinking earlier in the evening, failed field sobriety tests, and a witness testified that he observed the defendant get out of his car and that the defendant was the only occupant of that car. •Beals v. State, 533 So.2d 717 (Ala.Cr.App. 1988): Evidence sufficient: officer testified that defendant’s car was stopped in right-hand lane of highway at 12:20 a.m., with defendant slumped over driver’s seat either unconscious or asleep, that defendant was disoriented and could not walk without assistance, and that there was strong odor of alcohol. •Davis v. State, 505 So.2d 1303 (Ala.Cr.App. 1987): Evidence sufficient under test of Cagle: Trooper observed a truck sitting in emergency lane of an interstate highway; the truck’s lights were on; the defendant was sitting behind the steering wheel drinking a beer; his brother was in the passenger seat drinking; several beer cans were scattered around the truck; the defendant told the trooper that the oil light on the truck had come on and they had pulled over to let the engine cool. •Spann v. State, 440 So.2d 1224 (Ala.Cr.App. 1983): Evidence sufficient to support conviction for actual physical control where the car was parked on the shoulder of the highway, with the engine not running but the headlights on and the defendant seated behind the steering wheel with his head down as if asleep and the keys in the ignition. The term “actual physical control" requires proof of operability of the vehicle.

The vehicle does not have to be in a state of operation, but must be capable, at least to some degree, of operation. The Mester case stretches that concept to the limits of recognition. But even in the Mester case, there was evidence that Mester had the present ability to steer, guide, or direct the controls over a vehicle that was being pushed from the rear. Probably the most common situation that an arresting officer will encounter in “actual physical control" cases is that of the “passed out" motorist slumped over the steering wheel or laying on the front seat with the engine running. As long as the vehicle is capable of immediate operation, that is legally sufficient for a lawful arrest.

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