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Where were you arrested? A DUI is a state offense, but each jurisdiction handles them slightly differently.

Can you really get a DUI when you aren't even driving?

Sometimes, it seems there is no way to get it right. Let's review a case where the police can charge you with DUI even if you weren't sitting upright driving your car.

Let's set the scene: You leave a party where the drinks were flowing a little too freely. On your walk to the car, you realize that driving home in the condition you're in is definitely not a good idea. Rather than run the risk of getting behind the wheel, you decide that it might be a better idea to catch a few hours of sleep in the back seat of your car. When you wake up a few hours later, you'll probably end up with a crick in your neck, as well as a headache, but you'll be sober enough to safely make your way home and there was no harm done. Right?

Well....while it is definitely safer not to drive when you're over the limit, there are still circumstances in which a police officer who comes across you in this situation may be able to charge you with a DUI after all.

DUI without even starting your car engine

It doesn't seem to add up, does it? How can you end up with a DUI when you didn't actually drive anywhere while you were under the influence? The answer lies in what is legally considered being in "actual physical control" of your vehicle.

The specifics of this idea actually varies from state to state, and while there is no official definition of bright line rule as to what the state of Arizona considers actual physical control, police have the leeway to make the decision on their own. This means that if a police officer were to find you sleeping in your car, they would be able to wake you, gauge the situation, test your BAC and based on their assessment of the likelihood and possibility that you could wake up and drive your car at some point when you would still feasibly be over the legal limit on your current blood alcohol content level. If they feel there is cause to believe that you easily could or would wake up, start your car and get on the road in the state that you're in, they may issue a "pre-emptive" DUI charge. Actual Physical Control has been vastly expanded from its initial intent to help officers stop DUI's before they happen when driving would be imminent. Today we see all kinds of DUI's charged in situations that don't feel right.

Potential rather than intent

This possibility is even stronger when you're found in the driver seat, with your keys either accessible or in the ignition, but can still feasibly hold even if you chose the back seat for your nap. The reasoning behind the charge is sketchy and can be challenged. Knowing about this somewhat unusual avenue to being charged with one may help prevent you from making a costly mistake in the future. Otherwise, if you've arrived here because you already have been arrested for a DUI without driving and aren't sure you deserved it, give us a call. We'd love to hear your side of the story. If handled correctly these cases can be resolved very favorably, but don't rely on the magnanimous nature of Governments attorneys.

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We play an active role in the civic life of the Phoenix metropolitan area.
We support Scottsdale's Taste of the Town festival that benefits the local chapter of the Muscular Dystrophy Association as well as the annual Toys for Tots campaign. Our firm also contributes to a number of other local organizations, including Home 'Fur' Good, a nonprofit dedicated to eliminating the euthanasia of adoptable homeless cats and dogs in Maricopa County.
AACJ Arizona Attorneys for Criminal Justice Avvo Rating 10.0 Superb Top Attorney DUI Super Lawyers Arizona Trial Lawyers Association Attorney At Law Magazine Contributing Editor Arizona Attorneys For Criminal Justice Established 1986

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