Actual Physical Control & DUI

DUI when not driving in a parked car

By Greg Smith posted in DUI on Monday, September 18, 2017

So, you’re too impaired to drive, and you know; therefore, you are merely sitting in your car (the key is not even in the ignition). A cop walks up to you and says, “Hi, are you okay?” And you say, “Yep, and I am being very responsible, too! You see I’ve had a few beers, so I am not driving, aren’t you proud of me?” The cop the smiles and says, “Step out of your car, please.”

He then cites you for a DUI because your “BAC” is over the legal limit.

You, see, there’s a common misconception that if you are not driving the vehicle at the time the officers come in contact with you that you cannot get a DUI.

Why? Well, “public policy” has long been that it’s better to stop a DUI before the potential driver actually hurts someone.

But, here is the kicker, unless the car was running when the cop approached you, how would he know the car was operational? Our position: they have to prove the car was “operational”; after all, if the car is out of gas, or not operational, the car is no better than a hunk of iron, not a “motor vehicle.”

Officers however, are not just given carte blanche to give everybody a DUI. Courts over years have given guidance on what officers have to find before they can start a DUI investigation.

The most common element that needs to be present before the investigation can start is “actual physical control” or what some courts have called an “apparent ability to drive”. That’s why if the cop doesn’t know you have a key that can start the car, there could be a major problem (especially, if you kept your mouth shut).

The main Court case that laid out the elements of actual physical control is Richfield City v. Walker. The Walker case created several factors to be considered in determining whether the “occupant” was in “actual physical control of the vehicle,” and these factors have been used in many cases.

They are:

(1) whether defendant was asleep or awake when discovered; (2) the position of the automobile; (3) whether the automobile’s motor was running; (4) whether defendant was positioned in the driver’s seat of the vehicle; (5) whether defendant was the vehicle’s sole occupant; (6) whether defendant had possession of the ignition key; (7) defendant’s apparent ability to start and move the vehicle; (8) how the car got to where it was found; and (9) whether defendant drove it there.

Not one of these factors are determinative of actual physical control but are looked at as a whole. So if a Court is tasked with deciding if a defendant was in actual physical control, they will go through these factors and determine which ones are present and which ones may not be, then the court will “weigh the factors” and decide if there was actual physical control.

Often a jury is tasked with making this decision, but instructions should be given to ensure the factors are evenly considered.

If there is no actual physical control there is no DUI. Call us at 801-641-3397. We can help.

Tags: dui, drunk driving, criminal defense

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