Can I Get Charged with a DUI (Driving Under the Influence) if I Wasn’t Even Driving?

DuMond Disclosure Volume 1 | By Chris Doran, Esq. | April 8, 2016

To put it simply…yes, yes you can.  There are three main elements in all DUI cases in Arizona: 1) Being under the influence of alcohol or drugs, while 2) driving or being in what’s called “actual physical control,” of 3) a motor vehicle.

Let’s start with the third element because it is probably the simplest element to explain and the least contested element in most cases.

What is a motor vehicle?

A motor vehicle is defined as a 1) self-propelled vehicle or 2) a vehicle that is operated on the highway and that is propelled by the use of motor vehicle fuel.[1]  Essentially, this means a vehicle that can move on its own without someone having to push it forward, or a vehicle that runs on some type of motor vehicle fuel (e.g. gasoline).  The obvious examples are cars, trucks, motorcycles, buses, and vans.  Two items that are specifically precluded from this category by statute are motorized wheelchairs and motorized skateboards.  What about things like golf carts, quads, dirt bikes, sand rails, tractors, and boats?  Yes, these most likely would qualify as motor vehicles under the law.  What about a bicycle, a scooter, or a skateboard?  No.  While it may not be wise to skateboard or ride your bicycle while intoxicated, it most likely will not result in a DUI.  Now my mind is really starting to wander…what about my motorized lawn mower?  Can I get a DUI while mowing my lawn?!

dui-elements-1dui-elements-2

Technically, these types of lawn mowers are self-propelled.  Whether or not a police officer would realistically try to charge you with a DUI for mowing your lawn is a different question.  But to be on safe side, it might be best to cut the grass before you decide to pop open a couple of beers.

Speaking of beer, let’s move on to the element of drinking.

What does it mean to be “under the influence” of alcohol or drugs?

If you have lived in Arizona for even a small amount of time, you have probably heard the phrase, “Arizona is a zero tolerance state.”  What does this mean?  It means that while we always hear that 0.08 is the “legal limit” for blood alcohol concentration (BAC), you can get a DUI if there is ANY amount of alcohol in your system.  Why is this?  Under Arizona law, there are basically four different categories with respect to misdemeanor DUIs relating to alcohol:

  • A BAC of 0.20 or more is considered a super extreme DUI (highest): For first time offenders (or repeat offenders whose prior DUIs are more than 7 years old), this means:
    • A minimum jail term of 45 days (31 of which can be suspended, meaning that you must serve 14 days in jail at the very least),
    • A minimum of $2,750.00 in fines and assessments,
    • A suspension of your driver’s license for at least 90 days,
    • The installation of an ignition interlock device in your vehicle for 18 months,
    • SR-22 requirements and increased insurance premiums with your insurance company, and
    • Possible community service.
  • A BAC of 0.15 or more but less than 0.20 is considered an extreme DUI: For first time offenders (or repeat offenders whose prior DUIs are more than 7 years old), this means:
    • A minimum jail term of 30 days (21 of which can be suspended, meaning that you must serve 9 days in jail at the very least),
    • A minimum of $2,500.00 in fines and assessments,
    • A suspension of your driver’s license for at least 90 days,
    • The installation of an ignition interlock device in your vehicle for 12 months,
    • SR-22 requirements and increased insurance premiums with your insurance company, and
    • Possible community service.
  • A BAC of 0.08 or more but less than 0.15 is considered a standard DUI: For first time offenders (or repeat offenders whose prior DUIs are more than 7 years old), this means:
    • A minimum jail term of 10 days (9 of which can be suspended, meaning that you must serve 1 day in jail at the very least),
    • A minimum of $1,250.00 in fines and assessments,
    • A suspension of your driver’s license for at least 90 days,
    • The installation of an ignition interlock device in your vehicle for 12 months,
    • Possible SR-22 requirements and increased insurance premiums with your insurance company, and
    • Possible community service.
  • A BAC above a 0.00, but less than 0.08 is considered an Impaired to the Slightest Degree DUI (lowest): For first time offenders (or repeat offenders whose prior DUIs are more than 7 years old), this STILL means:
    • A minimum jail term of 10 days (9 of which can be suspended, meaning that you must serve 1 day in jail at the very least),
    • A minimum of $1,250.00 in fines and assessments,
    • A suspension of your driver’s license for at least 90 days,
    • The installation of an ignition interlock device in your vehicle for 12 months,
    • Possible SR-22 requirements and increased insurance premiums with your insurance company, and
    • Possible community service.

*All of the above types of DUIS are misdemeanors, but they can turn into felonies if any of the following apply: 1) Your driver’s license is suspended at the time; 2) If this is your 3rd DUI in the last seven years; 3) If there is a child under the age of 15 in the vehicle with you; or 4) If you do not have the required ignition interlock installed.

Many people get hung up on the 0.08 BAC number.  But, where does that number come from exactly?  A.R.S. §28-1381(G).  It says, “if there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.”  This comes into play at a trial.  You know how people are “presumed” innocent until proven guilty?  This statute changes the rules a little bit.  It says that if you have a 0.08 BAC or higher, then a jury does not have to presume that you are innocent, but rather, they can presume that you were under the influence.  Along the same lines, if an individual’s BAC is below a 0.05, then the jury can presume that an individual was not under the influence.  And, if the BAC is between a 0.05 and a 0.08, then there is no presumption one way or the other.  A presumption is basically just a starting point.  These numbers only affect the jury’s starting point at a trial, but it is important to understand that in Arizona, any of the above categories can lead to a DUI conviction.

Okay, we have covered what a motor vehicle is and what it means to be intoxicated…let’s talk about actual physical control.

What does it mean to be in “actual physical control”?

The DUI statutes says driving OR actual physical control of a motor vehicle.  This is the reason individuals can be charged and convicted of a DUI without driving.  Actual physical control (APC) is not defined in the statutory code; rather, its definition comes from court opinions in previous cases.  In determining actual physical control, the courts have determined that we are supposed to look at the “totality of the circumstances” to determine whether or not a person’s current or imminent control of the vehicle presented a real danger to himself/herself or others.  There is no hard and fast rule as to what qualifies as actual physical control, and the analysis will vary on a case by case basis, but some factors to consider are:

  • Whether the vehicle was running;
  • Whether the ignition was on;
  • Where to ignition key was located;
  • Where and in what position the driver was fond in the vehicle;
  • Whether the person was awake or asleep;
  • Whether the vehicle’s headlights were on;
  • Where the vehicle was stopped;
  • Whether the driver had voluntarily pulled off the road;
  • Time of day;
  • Weather conditions;
  • Whether the heater or air conditioner was on;
  • Whether the windows were up or down;
  • Any explanation of the circumstances shown by the evidence.[2]

If you have been arrested for a DUI for being in actual physical control of your vehicle, it is in your best interest to hire a lawyer who is experienced in this area.  You will need an attorney who is well-spoken, persuasive, and confident when advocating for your position to a prosecutor, a judge, or a jury.

DuMond Law recently took an aggravated DUI case (4 counts) to trial where the only issue was whether or not the individual was in actual physical control of a motorcycle.  The day before trial, the judge told our client, “I have seen 26 of these cases go to trial, and all 26 have resulted in guilty convictions.”  We are proud to say that our client was not number 27, he was number 1!  The first defendant to be found not guilty for these types of felony DUI charges in front of that judge. [3]  As I mentioned above, every case is different.  This outcome does not happen in all cases.  No lawyer can guarantee or promise you a certain outcome in your case, but I can guarantee you that DuMond Law will zealously represent you to get the best possible result in your case.  DuMond Law offers affordable prices and extremely competitive prices for these types of cases because we believe that individuals should not have to be rich in order to receive great representation.

~Call today to schedule a free consultation~

(602) 803-4975

[1] Arizona Revised Statute §28-101(35)
[2] Revised Arizona Jury Instructions (RAJI) and State v. Zaragoza, 221 Ariz. 49, 209 P.3d. 629 (2009)
[3] CR2015-000328-001 State v. Christopher Albaugh

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