Can I get a DUI if I’m not driving?

Posted on October 24, 2019 in Drunk Driving Charges

After having a few too many drinks at the bar, you decide to sleep it off in your car. You know you can’t drive home in your condition. But when you get in your car and turn the key on to listen to the radio and roll the windows down, police pull up behind you and arrest you for a DUI.

In Arizona, this can happen to people who choose to not drive while intoxicated. Under Arizona laws, anyone in actual physical control of the vehicle while over the legal alcohol limit can face an arrest.

What is actual physical control?

Arizona law includes actual physical control of a vehicle as a basis for a DUI arrest. Even if you don’t plan on driving, just being in the car with the key can mean you have control over the vehicle. Police may assume that you plan on driving while drunk or that you have already been driving.

How do courts decide if you had actual physical control?

Unfortunately, the law doesn’t include a description of what exactly “actual physical control” means. However, in an Arizona Supreme Court case, the justices made a list of what cops and courts should consider when deciding if the defendant planned on driving. These include:

• Was the person sleeping?
• Was the engine on or off?
• Did the person have the key and was the key in the ignition?
• Where was the vehicle at?
• Did the driver have the air conditioner on or the windows rolled up or down?

Each court may consider these questions and more like them when deciding on whether a person had actual physical control.

No specific definition of actual physical control

If you make the responsible decision to not drive after drinking, you may still get a DUI. Your ability to prove that you had no intentions of driving will determine if a court convicts you or not. Since there is no specific definition of actual physical control, your defense must prove without a doubt that you did not drive and did not plan to while under the influence.