Actual Physical Control in Arizona: ARS 28-1384 click for a free consultation

Posted on October 31, 2025 in assault & violent crimes

In Arizona, “actual physical control” of a motor vehicle is a factual concept that can lead to a driving under the influence (DUI) conviction, even if you are not actively driving.

Actual physical control describes current or imminent control of a vehicle that poses a real danger to you or to others when you are impaired by alcohol, drugs, and/or vapor.

Arizona Revised Statute (ARS) 28-1381 is the primary DUI statute in Arizona.

Arizona law does not distinguish between driving and being in “actual physical control” for purposes of charging you with a DUI offense. Thus, it is important to understand how you might be found to be in actual physical control of a motor vehicle and how you may be able to defend yourself from a DUI charge if you are not actively driving.

Rosenstein Law Group represents Arizona residents charged with all forms of DUI offenses, including actual physical control cases. 

If you are facing a DUI charge, call us at (480) 248-7666 to speak with an Arizona DUI attorney in a free case evaluation.

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

No statutory definition exists for determining “actual physical control.” Instead, the decision about whether you are in actual physical control of a motor vehicle is based on analyzing the totality of the circumstances that existed at the time a law enforcement officer comes upon you in your stationary vehicle.

The totality of the circumstances analysis considers whether you were presently in a position to immediately operate the vehicle.

It is the prosecutor’s burden to prove beyond a reasonable doubt that you were in actual physical control of a motor vehicle. You will have the chance to argue against the prosecution’s allegations that you were in actual physical control that may cast reasonable doubt upon the jury.

Factors to Consider in Deciding Actual Physical Control

Examples of some of the factors that a jury has to weigh in deciding if you were in actual physical control are:

• Whether the vehicle was running;
• Whether the ignition was on;
• Where and in what position the driver was found in the vehicle;
• Time of day;
• Weather conditions;
• Whether the heater or air conditioner was on;
• Whether the windows were up or down;
• Whether the driver had voluntarily pulled off the road;
• Where the vehicle’s key was located;
• Whether the vehicle’s headlights were on;
• Where the vehicle was stopped;
• Whether the person was awake or asleep;
• Any explanation of the circumstances shown by the evidence.

It is up to the jury to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.

Examples of Actual Physical Control Situations

To gain an idea of how actual physical control factors can influence the jury in a DUI case against you, consider the following hypotheticals when you have been drinking prior to or while driving and a police officer finds you in your car stationary:

• You pull your vehicle off the road and park it. You turn the engine off and remove the key from the ignition. You move into the back seat and go to sleep. These circumstances may suggest that you have no present ability to immediately resume driving, and thus are not in present or imminent control of the vehicle.
  
• You pull your vehicle off to the side of the road, but you leave the motor running and just put the vehicle in park. You remain in the driver’s seat and doze off for a while. This is when a police officer pulls up behind you. In this case, since it would be easy for you to wake up from your nap and resume driving immediately while still being under the influence, this could be an example of being in actual physical control.

What are the Penalties for Being in Actual Physical Control?

As we have stated above, the effect of being found in actual physical control of a motor vehicle is the same as if a police officer pulls you over based on reasonable suspicion to conduct a traffic stop. Actual physical control is not a separate offense from driving under the influence. It is just another way that you can be charged with DUI in Arizona even if you were not in the act of driving.

The possible administrative and criminal law consequences you may face will depend on:

• Whether you consent to chemical testing under Arizona’s implied consent law.
  
• Whether your blood alcohol content (BAC) level at the time of your arrest supports a finding of misdemeanor DUI (BAC < 0.15), extreme DUI (BAC between 0.15 – 0.19), or super extreme DUI (BAC > 0.20).
  
• Whether it is your first or a subsequent DUI offense within an 84-month period.
  
• Whether the circumstances of your DUI support a charge of felony Aggravated DUI (See ARS 28-1383).

Penalties for a DUI conviction based on actual physical control can be either a Class 1 misdemeanor or a Class 4 felony or Class 6 felony for aggravated DUI. Punishments can include jail time or a state prison sentence, significant fines, driver’s license suspension, an ignition interlock device requirement, community service, and probation.

Repeat offenders within 84 months of a current conviction will face more severe penalties.

What are Some Defenses to DUI Charges?

You Were Not in Actual Physical Control

If you were not operating a motor vehicle when you were arrested for DUI, and you can cast reasonable doubt upon the prosecution’s theory that you were in actual physical control based on the totality of the circumstances, can be an excellent defense and could possibly result in an acquittal/not guilty at trial by a jury.

You Were Not Impaired by Alcohol and/or Drugs and/or Vapor

You might be able to argue that the results of blood alcohol content tests were inaccurate based on improper calibration, maintenance, or operation of the testing equipment, improper administration of field sobriety tests, inaccuracies and/or omissions in/from the arresting officer’s report, or the possible unavailability of the arresting officer to testify against you.

Procedural Defenses

The failure of police to observe your constitutional rights can open the possibility of challenging the prosecution’s evidence in your case. For example, exploring the possibilities that the police: lacked reasonable suspicion to conduct a traffic stop, lacked probable cause to arrest you, failed to inform you of your constitutional rights prior to being questioned while in police custody, or violated those rights.

Challenging the chain of custody of evidence against you in the prosecution’s possession and/or challenging the recollection of the prosecution’s witnesses to cast doubt on the truthfulness and/or veracity of their testimony.

Have You Been Charged With DUI When You Were Not Actively Driving in Arizona?

Rosenstein Law Group provides top-notch, unsurmounted legal representation in any and all types of DUI and criminal traffic offenses throughout Arizona with over 200 years of combined DUI defense experience.

If you are looking for a premium DUI defense attorney, you can reach us 24 hours a day, 7 days a week by calling (480) 248-7666 or using our contact form to schedule a free case evaluation with an experienced DUI defense lawyer.