Can you really get a DUI charge when you weren’t even driving?

Posted on January 30, 2018 in Blog

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 ofyour 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 wakeyou, 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 geton 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 preventyou 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 themagnanimous nature of Governments attorneys.