Written by attorney James Nesci

Can I be charged with DUI if I wasn't driving?

Yes--you can be charged with DUI even if you are not driving. The charge is DUI While in "Actual Physical Control" of a vehicle. Whether you are in actual physical control or not is a question of law that has been answered many different times over many different years. In Arizona, we start in 1983 with the Zavala case and end in 1995 with the Love case:

In State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983) the Supreme Court of Arizona held that a motorist who was asleep and parked in the emergency lane of I-10, with the key in the ignition and the motor off, was not in actual physical control because he "voluntarily ceased to exercise control over the vehicle prior to losing consciousness." Zavala at 358-59, 666 P.2d at 458-59.

In Zavala, supra, the defendant was found asleep inside the truck with his key in the ignition. In the Sundt case, according to the officer, the driver voluntarily ceased control of the vehicle and exited.

"The interpretation we place on the legislature's imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway."

Zavala, supra at 459.

State v. Superior Court In and For Greenlee County, 153Ariz. 119, 735 P.2d 149 (Ariz.App 1987) clarified the earlier decision of Zavala, supra, in that it defined what a driver must do to be under the protection of Zavala, supra. The Court wrote:

"We believe that our supreme court's use of the conjunction "and" in State v. Zavala requires the driver to do two things in order to be found not in actual physical control of his vehicle. He must place the vehicle away from the road pavement, outside regular traffic lanes, and he must turn off the ignition so that the vehicle's engine is not running."

State v. Superior Court, at 153.

In order to be found not in actual physical control, a driver must perform both of the acts required in the two-prong test shown above. Placed his vehicle away from the road pavement and outside of regular traffic lanes and turn off the vehicle.

In State v. Vermuele, 160 Ariz. 295, 772 P.2d 1148, (Ariz.App. 1989), the court held that there was actual physical control because the defendant voluntarily placed himself behind the wheel and placed his key in the ignition and turned it to the "on" position so that he could use his cell phone to call for a ride.

In State of Arizona v. Love, 182 Ariz. 342, 897 P.2d 626 (Ariz.1995) the Arizona Supreme Court found, without overruling Zavala, supra, that Zavala might be too rigid in determining whether a driver is in actual physical control. The Court listed factors that are to be considered in any given case and listed some examples.

As applied to the facts of this case, the factors taken verbatim from Love, supra are:

(a) Whether the vehicle was running or the ignition was on.

(b) Where the key was located.

(c) Where and in what position the driver was found in the vehicle.

(d) Whether the person was awake or asleep.

(e) If the vehicle's headlights were on.

(f) Where the vehicle was stopped ( in the road or legally parked).

(g) Whether the driver had voluntarily pulled off the road.

(i) The time of day and the weather conditions.

(j) If the heater or air conditioner was on.

(k) Whether the windows were up or down.

(l) And any explanation advanced by the defense.

The Court, looking to Atkinson v. State, 627 A.2d 1019 (MD at 1993), states in Love, supra, that the above list is not all-inclusive, but;

"It merely serves to illustrate that in every case, the trier of fact should be entitled to examine all available evidence and weigh credibility in determining whether the defendant was simply using the vehicle as a stationary shelter or actually posed a threat to the public by exercise of present or imminent control over it while impaired."

(emphasis added). State v. Love, supra.

The question that the court looks to answer is whether the person was not posing a threat to the public by exercise of present or imminent control over it while impaired.

The State has a duty to prosecute people for violations of the law as it is written, not as they wish it to be. If the State had its way, they would create a new offense punishable by law: "PUI; Parked Under the Influence."

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