Written by attorney Joshua S. Baron

Driving or Sleeping Under the Influence? What Counts As "Driving" in Utah?

Our firm recently had a client who was found asleep in his car. When a police officer woke him up, he appeared to be drunk, but he wasn’t driving. Can he be found guilty of DUI even though he wasn’t driving?

Under Utah law (, the police basically have to prove two things:

  1. That you were driving or in control of a vehicle, and
  2. That you were too drunk to be driving.

You might think that you would have to actually be driving to be convicted of Driving Under the Influence. Actually, Utah law is much broader than that. The State has to show that you were either “operating" a vehicle or in “actual physical control" of a vehicle to prove you guilty of DUI.

Operating is basically the same as driving. If a police officer sees a person driving a car while drunk, that is basically enough to prove that they were DUI. That’s an easy case.

But, even if a person is asleep in a car with the ignition turned off, the police might have enough evidence to prove that the person was in “actual physical control" of a motor vehicle while drunk.

The Utah Court of Appeals explained ( that “the ‘actual physical control’ language of Utah's [law] prevent[s] intoxicated drivers from entering their vehicles except as passengers or passive occupants."

Some of the factors considered by Utah courts ( in deciding whether someone is in actual physical control over a vehicle are:

  1. whether defendant was asleep or awake when discovered;
  2. the position of the automobile;
  3. whether the automobile's motor was running;
  4. whether defendant was positioned in the driver's seat of the vehicle;
  5. whether defendant was the vehicle's sole occupant;
  6. whether defendant had possession of the ignition key;
  7. defendant's apparent ability to start and move the vehicle;
  8. how the car got to where it was found; and
  9. whether defendant drove it there.

None of the factors by itself is enough to decide whether a person is in actual physical control of a vehicle. Instead, all of the circumstances have to be weighed together to decide whether the person was a passive occupant of the car or in control of it.

So, it is impossible to say in any particular situation whether a person who was not driving a car was in actual physical control. A person who is accused of DUI who was not driving needs a good lawyer who can fight to show that they were not in control of their car and that they weren’t DUI.

I will explain how the State can prove that a person is too drunk to be driving in a later guide.

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