Assuming intoxication will not be disputed, could you successfully charge DUI in the following scenarios?
Scenario 1. You respond to an emergency call at an apartment complex in the early morning and see a man — Zaragoza — holding on to cars as he staggers through the parking lot toward his own vehicle. He enters his car, and you pull up behind him and discover him in the driver’s seat with one hand on the steering wheel and the other putting the key into the ignition. He has not yet started the car. His BAC is .357.
Zaragoza testifies at trial that he intended to sleep in the car after having an argument with a woman inside the complex and he only planned to start the ignition to roll down the window and turn on the radio. He denies any intention of driving.
Scenario 2. At 0230 you observe a truck stopped in a traffic lane partially blocking traffic — cars are moving around it — with its bright lights on. You stop and find the suspect — Webb — with his head and both hands on the steering wheel, passed out or asleep, and the motor running. Webb has a .231 BAC.
Scenario 3. You find an extremely intoxicated defendant unconscious and hanging partially from the window on the driver’s side of the truck parked in the emergency or parking lane of a freeway. The motor is not running and the key is in the off position.
Statutory Language
There are several key elements you should consider in order to successfully charge DUI in any of these cases — here, we’ll examine three.
First, it depends on the language of your DUI statute. You must know the exact language of your DUI statute and whether it requires “driving,” or also includes language such as “physical control,” “actual physical control,” or “operates.” Check out this interactive map of all 50 states’ DUI statutes from National College of DUI Defense.
Most states include broader language like “actual physical control” so the question then becomes, what might constitute “actual physical control.” Ask your prosecutor how courts in your jurisdiction have interpreted your statute’s driving element.
Second, it will depend on the facts you gather.
10 Questions
In the first scenario above, the Arizona Supreme Court upheld Zaragoza’s conviction. The case is often cited for facts to consider when deciding whether a DUI defendant is in “actual physical control” of a vehicle that is not being driven. The Arizona Supreme Court reasoned that “actual physical control” should be decided under a totality of circumstances that could include, but not be limited to:
1. Whether the vehicle was running or the ignition was on
2. Where the key was located
3. Where and in what position the driver was found in the vehicle
4. Whether the person was awake or asleep
5. If the vehicle’s headlights were on
6. Where the vehicle was stopped (in the road or legally parked)
7. Whether the driver had voluntarily pulled off the road; time of day and weather conditions
8. If the heater or air conditioner was on
9. Whether the windows were up or down
10. And any explanation of the circumstances advanced by the defendant
These are questions you’ll want to address in your police report. I would add another: Don’t forget possible witnesses. For example, a witness who saw defendant driving erratically before parking and shutting the car down, or, in contrast, a friend who told the defendant to go lay down in the defendant’s car and the friend would drive the defendant home later.
In the second scenario, the Arizona Supreme Court also upheld Webb’s conviction. The court reasoned, “An intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist. While at the precise moment the defendant was apprehended he may have been exercising no conscious volition with regard to the vehicle, still there is a legitimate inference to be drawn that defendant had of his own choice placed himself behind the wheel thereof, and had either started the motor or permitted it to run. He therefore had the ‘actual physical control’ of that vehicle[.]”
In the third scenario, the Arizona Supreme Court found these circumstances indicated “that [the] defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness.” The defendant therefore could not be convicted of being in actual physical control.
In my opinion, that was mental gymnastics. But it’s clear from the written opinion the court felt compelled to reach this interpretation because it believed “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 without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway.”
Danger Presented
The third element is to weigh the danger in your particular case. Prepare an argument for the prosecutor about the danger presented in your particular case based on the facts you gathered. Such an argument supported charging both intoxicated suspects with a DUI where they took turns pushing and steering their disabled car.
It didn’t hurt that they hit a parked car. As the prosecutor who accepted the case noted, they could have just as easily hit a child.
I get the court’s concern in scenario three, but it only if the defendant makes the decision before he drives. Otherwise, what about the danger the defendant presents before he decides to pull over? There’s another fact to pin down and argument to make.
