A person is parked sleeping in is car. In a lined parking space, in a lot. Transmission in “park.” But the engine is running and the A/C is on. It’s 1:30 AM. This person is woken up by the police and then arrested for DUI even though he was not technically “driving Seems unfair? It is. This blog is to show you why this happens in Arizona and what to do about it.

Actual Physical Control

Arizona DUI law doesn’t just outlaw drunk driving. The Arizona DUI statute outlaws driving or (being in) actual physical control of a motor vehicle if under the influence and impaired to the slightest degree. See ARS § 28-1381(a)(1) (West 2022).

The term “actual physical control” is not defined by statute. But it is intended to cover situations where the person is not actually driving but behind the wheel in a non-moving vehicle under such conditions that he is still presenting an immediate danger to the public.

However, the caselaw says that the statute is not intended to ensnare those who voluntarily pulls off the roadway and simply uses the car as a stationary shelter.

Actual Physical Control is generally a fact question for the jury. Some cases or obvious, others not so much.

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Take for example a driver who is (1) in the travelled part of the roadway (2) at a stop light; (3) passed out; (4) blocking traffic; (5)engine running; (6) transmission in drive. That person obviously isn’t voluntarily pulling over, and is simply using the car as a stationary shelter while he sleeps if off.

But what about this: Driver is (1) passed out (2) at a gas pump, (3) door open, (4) engine off (5) no gas being pumped . Has that driver voluntarily pulled the car off the roadway and simply using the car as a stationary shelter?

Or how about this: Driver is (1) parked (2) in a lined parking space (3) at a convenience store; as (4) 1:00 AM; (4) vehicle in ‘park’ (5) engine running and AC on (5) passed out (6) door open and (7) he has recently gotten sick?

We’ve had these three precise cases, and many gradations.

Arizona Caselaw

The Arizona Supreme Court suggests that a factfinder consider the following factors when determining if a person is in actual physical control or simply using the car as a stationary shelter:

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1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;

And : Whether the heater or air conditioner was on; and whether the windows were up or down.
See State v. Zaragoza 221 Ariz. 49, 54 (2009) (en banc).

An older case , sort of the grandfather of Arizona APC cases State v. Zavala is still instructive.136 Ariz. 356, 666 P.2d 456 (1983). There, the police found an extremely intoxicated defendant unconscious and “hanging partially from the window on the driver’s side of the truck[,]” parked in the emergency lane of a freeway. Id. at 357, 666 P.2d at 457. The motor was not running and the key was “in the off position.” Id..

The Court almost forty years ago found these circumstances indicated “that [the] defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness.” Id. at 359, 666 P.2d at 459. The defendant therefore could not be convicted of being in actual physical control. Id. The Court felt compelled to reach this interpretation of actual physical control because it believed that “it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober.”

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Application to Your Situation and Probable Cause Motions:

No matter how high your alcohol level, in any case that you are not driving at the time of your DUI arrest, you should think about consulting with either appointed or private counsel before pleading guilty.

The defense of an actual physical control case often has little to do with alcohol level. Of course you were “impaired”—you simply doing exactly what the Arizona Supreme Court said you should do: pull the car off the roadway, and use the car as a stationary shelter.

While usually a jury question, there are those instances where it seems so obvious that you didn’t intend to drive further, but rather relinquished control, that a judge might find that there was no probable cause for the police to even arrest you.

In many of these stationary shelter cases there are either texts or other records of the driver reaching out to someone to come get them; or at convenience stores security tape of a driver pulling in to a spot and not getting out of the car for let’s say two hours. Both of these pieces of evidence can be beneficial to your case, and might be easily overlooked.

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Conclusion

“Actual Physical Control” is outlawed under Arizona’s DUI laws. But the law also says that you cannot be penalized if purposely relinquished control and you’re only using the car as a stationary shelter. The defense is available no matter how high your BAC. Some simple leg-work can help you in some cases prove up this defense.