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Can I sleep in my car if I’m too drunk to drive? (Actual Physical Control of a Vehicle in Arizona)

Can I sleep in my car if I’m too drunk to drive? (Actual Physical Control of a Vehicle in Arizona)

If you move your car, whether it be five inches, five feet, or five miles, it is defined as “driving.” I have had plenty of people walk into my office and tell me that they were arrested for driving under the influence, but they “didn’t drive”– they just “moved” the car into a parking spot, or out of a driveway. Bad news folks–that’s driving.

Yet, many other people have walked into my office and told me that they were arrested for DUI, and they were sleeping in the front seat, or the back seat, or they were even outside of the car at the time. These cases fall under the category of “actual physical control.”

Whether you are in actual physical control or not is a question of law that has been answered many different times over many different years. In Arizona, we start in 1983 with the Zavala case and end in 2009 with the Zaragoza case case:

In State of Arizona v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983) the Supreme Court of Arizona held that a motorist who was asleep and parked in the emergency lane of Interstate 10, with the key in the ignition and the motor off, was not in actual physical control because he “voluntarily ceased to exercise control over the vehicle prior to losing consciousness.”

Mr. Zavala was found asleep inside the truck with his key in the ignition. “Fresh” vomit was on his shirt and on the driver’s side door. He smelled, heavily, of alcohol. There was no evidence beyond the condition and place where he was found that he had driven to that location while under the influence. The Court wrote: “The interpretation we place on the legislature’s imprecise language is compelled by our belief 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, 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.”

While Mr. Zavala could not be prosecuted for the DUI for being in his truck while intoxicated, however, if the government had been able to prove that he drove to that location, while under the influence, he could be prosecuted for DUI. This makes sense, of course, because if the government can prove that anyone drove anywhere while under the influence, that person could be prosecuted for DUI. In Mr. Zavala’s case, the government could prove neither that he drove to the location, nor that he was under the influence at the time of alleged driving.

The case of State of Arizona v. Superior Court In and For Greenlee County, 153Ariz. 119, 735 P.2d 149 (Ariz.App 1987) clarified the earlier decision of Zavala, in that it defined what a driver must do to be under the protection of the law as stated in Zavala. The Court wrote: “We believe that our supreme court’s use of the conjunction “and” in State v. Zavala requires the driver to do two things in order to be found not in actual physical control of his vehicle. He must place the vehicle away from the road pavement, outside regular traffic lanes, and he must turn off the ignition so that the vehicle’s engine is not running.”

Thus, in order not to be found in actual physical control, a driver must perform both of the acts required in the two-prong test shown above:

(1) place the vehicle outside of regular traffic lanes, and;

(2) turn off the vehicle.

In State of Arizona v. Love, 182 Ariz. 342, 897 P.2d 626 (Ariz.1995) the Arizona Supreme Court found, without overruling the Zavala case, found that the two-prong approach in Zavala might be too rigid in determining whether a driver is in actual physical control. The Court said “. . . in every case, the trier of fact should be entitled to examine all available evidence and weigh credibility in determining whether the defendant was simply using the vehicle as a stationary shelter or actually posed a threat to the public by exercise of present or imminent control over it while impaired.”

The Court listed factors that are to be considered in any given case and listed some examples to be considered:

(a) Whether the vehicle was running or the ignition was on.
(b) Where the key was located.
(c) Where and in what position the driver was found in the vehicle.
(d) Whether the person was awake or asleep.
(e) If the vehicle’s headlights were on.
(f) Where the vehicle was stopped ( in the road or legally parked).
(g) Whether the driver had voluntarily pulled off the road.
(i) The time of day and the weather conditions.
(j) If the heater or air conditioner was on.
(k) Whether the windows were up or down.
(l) And any explanation advanced by the defense.

The question that the court looks to answer is whether the person was not posing a threat to the public by exercise of present or imminent control over it while impaired. Taken to its logical conclusion, a person could be pushing an inoperative car down the roadway. Is that actual physical control? Yes it is.

Does the person present a threat to the public? That depends on the location and surroundings. If the car starts rolling down a hill, it certainly poses a threat. If it is in the desert with level ground and no chance of rolling anywhere, it does not pose a threat.

Take the example of a person asleep behind the wheel with the engine running and the automatic transmission in the park position. That presents no threat as long as the person is out of the flow of traffic. If, however, the transmission is in the drive position, and the sleeping person has her foot on the brake, that is imminent control. It’s not a question of if the car will move–it is a question of when the car will move.

(There is one anomaly in Arizona’s Actual Physical Control law, however. In State of Arizona v. Vermuele, 160 Ariz. 295, 772 P.2d 1148, (Ariz.App. 1989). The court, inexplicably, held that there was actual physical control because the defendant voluntarily placed himself behind the wheel and placed his key in the ignition and turned it to the “on” position so that he could use his cell phone to call for a ride.)

The case of State v. Dawley, 201 Ariz. 288 (Ariz.App. Div. 2 2001) was not decided in the best possible manner to protect the people of Arizona. Fortunately the case does not overrule any other case. Dawley case seems to extend the opportunity to be convicted of DUI to those people who are intoxicated and may drive their vehicles at some unspecified point in the future. The court found that the jury should be instructed that the defendant (Mr. Barraza) was in “actual physical control” of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others. This case is a sharp departure from State v. Zavala, cited above. The Dawley standard is seemingly “potential” use of the vehicle, which begs the question: When will the Arizona Legislature replace the term “actual physical control” with “potential physical control”?

Finally, in the 2009 case of State v. Zaragoza, 221 Ariz. 49, 55, 209 P.3d 629, 635 (2009), a police officer saw an obviously drunk Zaragoza stagger to a car and get in. The officer walked up to the driver’s door, shined his flashlight in and saw Zaragoza, upright in the driver’s seat, putting the key into the ignition. He did not turn the key, but claimed that he was only using the vehicle for shelter (see the Love case, above) and also said he that put the key in the ignition to lower the window and to listen to the radio. He told the officer that he was not going to drive. Zaragoza was tried and convicted of aggravated DUI (DUI with a suspended license).

At trial the jury was instructed: “The defendant is in actual physical control of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others at the time alleged.”

The statute, however, criminalizes only “actual” use, not “potential” use. Thus the Court ruled that the crime is completed when the circumstances of control–as actually physically exercised–demonstrate and ultimate purpose of placing the vehicle in motion or directing influence over a vehicle in motion. Although at odds with State v. Dawley, Zaragoza did not specifically overrule it.

The State has a duty to prosecute people for violations of the law as it is written, not as they wish it to be. If the State had its way, they would create a new offense punishable by law: “PUI; Parked Under the Influence.”

Can you sleep in your car if you feel too drink to drive?

So, what’s the advice to be taken? If you feel as if you shouldn’t be driving, don’t drive. If your car is not in a safe location, don’t move it. Simply walk away from it and find sober help to remove it from the unsafe location.

If it is in a safe location, off the traveled portion of the roadway, and you want to sleep in it, or wait for a ride, or whatever, don’t put the key in the ignition. Get in the back seat if the car has one. If not, sit the passenger’s seat. If you must start the car, take into consideration the reason for starting it (i.e. it is 110 degrees outside and you need air conditioning, or it is only 10 degrees and you need heat). You may be questioned by the police as to whether you drove it there, or whether you drank anything before you got there. If your answers are that you did drive it to that location, or that you had nothing to drink after you arrived, invoke your right to remain silent and say nothing.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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