Actual Physical Control by DUI Attorney Nick Alcock

Most people when they think of DUI cases think of the stereotypical “drunk driver,” weaving down the road and crashing into trash cans on the side of the road. DUI Attorneys in Arizona all know that you don’t need to actually be driving a vehicle to get a DUI.

If you look closely at a tickey in Arizona, you will see where the police officer writes, “DUI, APC” or “DUI, Actual Physical Control.” But what is actual physical control. When are you safe to sit in a vehicle and when do you put yourself at risk of a DUI arrest.

Unfortunately, there is no easy test for APC in Arizona. Furthermore, courts have interpreted the definition of APC differently. Thus a person sitting behind the wheel, engine off, keys in the ignition may wind up with a DUI is one court but not another.

Generally speaking, courts look to the “totality of the circumstances.” A person passed out in their own driveway who says that they are sleeping in their car because they lost their house key will have a great DUI defense. A person passed out in a McDonalds’ drive through–not so much.

The factors that the courts consider are many. Whether or not the engine was running, keys in the ignition, windows up or down. It goes on and on. But the fundamental consideration is this. Were you a real risk to yourself or others.

In a way, APC cases are kind of like science fiction “future crimes.” You are being charged for something that you might do in the future, but perhaps you haven’t done yet. The court used to apply a test as to whether or not the driver had the “potential” to drive the car. This test is really insane, because any impaired person in a bar has the “potential” to go to the parking lot and drive away.

Fortunately, in State v. Zaragoza, the Arizona Supreme court took away the “potential” test and replaced it with something more reasonable. The court held that the control must be actual or imminent. They also held that the control must then also be present a real danger to others in the community.

As a DUI attorney, I get asked all the time what should you do if you want to avoid being charged with APC. The simple answer is to stay out of your car at all costs. If you have to sleep in your car, I advise you to sleep in the back seat. Keep the keys out of the ignition. If your car has a lever that enables you to open the trunk, put your keys in the trunk. That way you would not present an “imminent” risk to others.

DUI attorney Nick Alcock practices law in Phoenix, Arizona.

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