What Does “Actual Physical Control” Mean?

Posted on January 13, 2023 in Arizona Revised Statutes,DUI

Under Arizona law, a driver could be arrested for driving under the influence (DUI) even without actually having driven a car. This is because Arizona law makes it illegal to be in “actual physical control” of a motor vehicle while under the influence of alcohol or drugs. However, whether being in physical control of a vehicle will lead to a DUI arrest depends on the circumstances.

Breaking Down Arizona’s DUI Law

Arizona’s law against driving under the influence is found in Arizona Revised Statute Section 28-1381. This law states that it is unlawful for a person to drive or be in actual physical control of a vehicle while under the influence of an intoxicating liquor, drug, vapor releasing substance containing toxins or any combination thereof if the person is impaired to the slightest degree. 

An individual could also face DUI charges if he or she is found to have a blood alcohol concentration (BAC) of 0.08 percent or more within two hours of driving or being in actual physical control of a vehicle if the BAC results from alcohol consumed before or while being in control of the vehicle. Finally, if operating a commercial vehicle, it is against the law to drive or be in actual physical control of the vehicle with a BAC of 0.04 percent or more.

Arizona’s DUI law is written in such a way that it allows law enforcement to charge an individual with this crime even if it cannot be proven that the individual was driving a motor vehicle while intoxicated. It is not necessary to drive a vehicle to be guilty of DUI; it is enough to have been in actual physical control of the vehicle.

What Does it Mean to Be in Actual Physical Control of a Vehicle?

Determining whether a defendant was in “actual physical control” of a vehicle at the time of a DUI arrest requires an analysis of the situation. There are no specific rules that determine actual physical control. This determination is made on a case-by-case basis after all the relevant factors and “totality of the circumstances” have been discussed in a court of law. 

In general, being in actual physical control of a motor vehicle means that an individual reasonably could have driven. A multitude of factors must be considered before applying this rule, including:

• Whether the vehicle’s engine was running or off
• Where the vehicle’s key was located
• If the vehicle’s engine was running for climate control only
• If the parking brake was on
• If the vehicle was in neutral or park
• If the vehicle’s headlights were on or off
• Where the car was parked
• The individual’s position inside the vehicle
• The individual’s reason for being inside the vehicle
• What the individual was doing in the car at the time the police arrived
• The time of day and weather conditions

It is the prosecutor’s burden to prove that the individual was in actual physical control of a motor vehicle at the time of the arrest in a DUI case. The defense will have the chance to argue against the prosecutor and poke holes in the case. This includes arguing that the individual was not in actual physical control, with proof based on an explanation of the circumstances – such as the individual got into the car for protection in bad weather.

The Importance of Hiring an Attorney 

Do not assume that you cannot be convicted of a DUI in Arizona if you were not driving a motor vehicle at the time of your arrest. If it is decided that you were in actual physical control of the vehicle, you could still get a DUI. The best way to protect your rights is to contact an experienced DUI defense attorney in Tempe as soon as possible to represent you. Your lawyer can build an argument against actual physical control and put forth other defenses on your behalf, as well.