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Taking the “Driving” Requirement out of DUI Charges [Updated 2022]

Posted on February 5, 2013 in General DUI Topics

At our firm, we get cases from clients who are charged with DUI when there either was no driving. These clients are both shocked and appalled that they are facing these charges, and rightfully so! Logically, one would think that in order to receive a DUI charge, at the very least the police or someone must have seen you driving. Unfortunately,through a series of cases, the evolution of the law in Arizona has virtually abolished the requirement that a person actually be driving the car in order to be charged with a DUI in Chandler or anywhere else in Arizona.

Many police officers see someone in or near a vehicle, find out that this person has been drinking, and automatically assume that they should be charged with DUI without even taking the time to understand that there are a multitude of reasons why that person is inside or near the vehicle. For example, we have had cases where a driver realizes they may be too intoxicated to drive home and decides to sleep it off in their car. An officer approaches, finds out about the drinking and arrests for DUI, even though the person is adamant they were not driving, and had no intention of driving home. This scenario has happened so frequently that is has resulted in a rule called the Shelter Rule.

What is the Shelter Rule?

The Shelter Rule is a valid and strong defense to a DUI charge. According to the law, the State is required to show that you were in actual physical control of the vehicle at the time you were under the influence of alcohol. If you were not using the car as a vehicle, but were only using it as shelter, you should not be found guilty of a DUI charge.

What Other Situations Can Lead to a Wrongful DUI Charge?

We have also had clients charged with DUI who are merely sitting in their car outside a restaurant after dinner, either waiting for a ride to come get them or charging their phone in the car charger. Imagine that it is summertime in Arizona (and we all know what that feels like), so the car engine is running and the air conditioner is cranked. While waiting in the vehicle, the police come up to “check on the vehicle occupant’s welfare” (always the officer’s excuse), and notice an odor of alcohol from inside the car. The officer automatically assumes that a DUI charge is appropriate, regardless of the protests and explanations made by the vehicle’s occupants, and subsequently arrests the person sitting in the driver’s seat. These are just a few of the all-too-frequent scenarios that we encounter.

What is Actual Physical Control?

In these types of unconventional situations, whether the driver ends up with a conviction for DUI depends on a list of factors outlined by the Supreme Court of Arizona in 2009 in the Zargoza case. The Court created an instruction for the jury that:

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 regarding actual physical control of a vehicle 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.”

The Court emphasized that this list was not exclusive, and that Defendants are entitled to present a wide array of evidence to show why they were not in actual physical control of the vehicle.

Speak to an Experienced DUI Defense Lawyer Today

It is important to hire an experienced attorney who is not only familiar with the defenses to DUI, but who can work with you to adamantly show the jury why you were not in actual physical control of the vehicle.

If you were arrested for DUI and you were not even driving the vehicle at the time the police arrested you, you may have a strong case. Call us, and we will help you to navigate the highway that is known as DUI law in Arizona.

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