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

What is DUI in Arizona?

Arizona is known to have extremely strict and dynamic DUI laws. 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. First, 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 defines what is known as Extreme DUI and Super Extreme DUI:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration as follows within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle:

1. 0.15 or more but less than 0.20.
2. 0.20 or more.

Under this statute, having a BAC of .15 or more but less than .20 is considered an Extreme DUI and having a BAC of .20 or more is considered a Super Extreme DUI. While the differences are a matter of a hundredths of a decimal, the consequences can be severe. The DUI statutes listed above, 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.

This 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.)

The current instruction was detailed in the Arizona Supreme Court case State of Arizona v. Zaragoza. In that case, the police officer saw the defendant stagger to his car and get in the driver’s seat with one hand on the steering wheel and the other putting the key in the ignition. After hearing the evidence, the jury convicted the driver of DUI. The most difficult part for APC is that in every case it is up to the jury decide. While one jury may find the person to be in actual physical control, another jury may not.

Because of this, it is imperative to have superior representation as a lot is on the line. There are a number of defenses and challenges a person can raise during the process after being charged with DUI. Whether it is challenging the validity of the stop, the administration of any of the field sobriety tests, or the procedure of obtaining a warrant or fighting for better terms of a plea deal, an experienced attorney will navigate this process with you. At Glendale DUI Lawyer, you get top-notch representation with personable communication - call today.