With city and county budgets heading more and more into the red in Arizona, it seems that police officers have been feeling the need to justify their salaries by bringing in more money to their municipalities. Due to the fact that DUIs are a huge revenue stream in Arizona, we have begun to see more and more cases being charged as DUIs that don’t appear on their face to be DUIs. Specifically, we have seen an increase in DUI cases that don’t involve driving.

Every DUI statute in Arizona states that, in order to be convicted of a DUI, a person must first be driving (obviously) or in “actual physical control” of a vehicle. I think you can see the gray area. Since no one bothered to define the term “actual physical control,” it has been subject to multiple interpretations throughout the years. The latest version of the definition/jury instruction for “actual physical control” reads as follows:

“In determining [whether] the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

1 – Whether the vehicle was running;
2 – Whether the ignition was on;
3 – Where the ignition key was located;
4 – Where and in what position the driver was found in the vehicle;
5 – Whether the person was awake or asleep;
6 – Whether the vehicle’s headlights were on;
7 – Where the vehicle was stopped;
8 – Whether the driver had voluntarily pulled off the road;
9 – Time of day;
10 – Weather conditions;
11 – Whether the heater or air conditioner was on;
12 – Whether the windows were up or down;
13 – Any explanation of the circumstances shown by the evidence

This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.”

I have had clients who were sitting in their car waiting for a ride get arrested and charged with DUI. What interest is there in that? I have even seen someone who was in the” doghouse” with his wife, asleep in his own car in his own driveway, get charged with a DUI. Our latest victory was in the case of a diabetic person who was suffering from extremely low blood sugar, but had been drinking the night before, and who went into his car to get a tube of sugar paste. It took the jury less than 30 minutes to acquit him of all charges, but my client had to endure the stress, strain and cost of trial. These types of DUI cases are appearing to become more and more common.