A.R.S. § 28-1381-1383: Driving or Actual Physical Control While Under the Influence

To be convicted of Driving Under the Influence (DUI) in Arizona, the driver must have been driving or in actual physical control of the vehicle. An individual can contest this element of the statute by arguing they were not driving because the driver and passenger had switched seats. They can also argue they were not in actual physical control because they pulled over or were not intending to drive the vehicle while under the influence.

What is DUI in Arizona?

At its base, there are four ways an individual can commit regular DUI found in Arizona Statute § 28-1381. From there, a number of factors can affect the punishment, sentencing, and gravity of the crime. An individual must have been driving or was in actual physical control while in the state of Arizona and have committed one of the following:

1. The person was under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substance if the person is impaired to the slightest degree.
2. The person has a blood alcohol concentration (BAC) of .08 or more within two hours of driving.
3. The person had any drug defined in A.R.S. 13-3401 or its metabolite in the person’s body.
4. The suspect vehicle is a commercial motor vehicle that requires a commercial driver license (CDL) and the person has a BAC of .04 or more.

One of the factors that can affect punishment is the BAC level – the higher the BAC the harsher the punishment. Arizona Statute § 28-1382 punishes a DUI committed with higher levels of BAC. An Extreme DUI is charged when the driver has a BAC between .15 and .19. A Super Extreme DUI is charged when the BAC is .20 or more. These charges, Regular, Extreme, and Super Extreme DUI, are all classified as a class 1 misdemeanor.

The final statute, Arizona Statute § 28-1383 lays out the circumstances of a felony DUI. A felony conviction will receive harsher penalties and consequences than a misdemeanor conviction. A person commits felony DUI, or Aggravated Driving Under the Influence, when they commit a violation of either A.R.S. § 28-1381 or A.R.S. § 28-1382 listed above and one of five of the following circumstances exist:

1. The person’s driver license or privilege to drive is suspended, canceled, revoked, or refused or a restriction is placed on the person’s driver license or privilege to drive as a result of a previous DUI.
2. The current violation is the driver’s third DUI violation in a period of 84 months (7 years).
3. A person under 15 years of age is in the vehicle at the time of the DUI.
4. The driver is required to have a certified ignition interlock device installed.
5. The person drives the wrong way on a highway.

Driving and Actual Physical Control

The key part in the statutes listed above is the element that requires an individual to “drive or be in actual physical control of a vehicle.” This means that a person can be punished even if they were not driving. The “driver” can be punished even if he was in actual physical control (APC) of the vehicle. Whether or not a person was driving relies heavily on witness observation and testimony of the suspect driving. Because most DUI’s occur after a collision or traffic stop, there is sufficient testimony, whether by a witness or an officer, to show the suspect was driving. However, there are certain cases where an individual was never seen driving but is still charged with DUI. In many of these cases, the suspect is either asleep in the driver’s seat, parked and off the side of the road, or other circumstances similar to this. When this is the case, the state must show that the suspect was in actual physical control of the vehicle.

IThe determination of whether the individual was in actual physical control is a fact that is only determined by the jury. After hearing all the evidence, the judge gives jury instructions that will help the jury deliberate and come to a decision. The following jury instruction will be what guides the jury regarding actual physical control:

In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

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;
10. weather conditions;
11. whether the heater or air conditioner was on;
12. whether the windows were up or down;
13. any explanation of the circumstances shown by the evidence.

This list is not meant to be all-inclusive. It is up to you 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.

RAJI (Criminal) NCSTI 28.1381(A)(1) (4th ed.)

Switching Seats

In some instances like this or this story, a driver and passenger will try to switch seats before they pull over or after the car is pulled over and before the officer gets to the window. They will try to do this because the driver is under the influence and could receive more severe consequences of a DUI. Officers are trained to look for this and will usually note their observations of the driver they first see driving and any activity they see in the car after the traffic stop. Officers will look to see if the vehicle bounces around or any other like clues that show the individuals are switching seats. If a passenger and driver switch seats, a passenger could still be charged with DUI if they are under the influence due to the actual physical control element listed above. Theoretically, if the officer saw the driver driving and saw the individuals switching seats, both parties could be charged with driving – the driver because he was actually driving and the passenger because he was in actual physical control of the vehicle at the time of the stop.

Because of the complexity of these charges and elements, having an experienced attorney is key to presenting a defense. At San Tan Valley DUI Lawyer, a dedicated team that includes former prosecutors will guide you throughout the legal process and help you understand the charges and evidence against you. Whether it is challenging any aspect of the stop and DUI investigation or fighting for the best deal possible, call today for a free consultation.