A charge of driving under the influence (DUI) leads to a challenging and disruptive time in your life. Thus, it is best if you are aware of exactly what can lead to a DUI charge. For example, you may be charged with a DUI if you consume any drug or vapor substance. A.R.S. § 28-1381(A)(1).

Similarly, you do not actually have to be driving to be charged with a DUI. This may seem counterintuitive. However, if you have had enough to drink to bring your blood alcohol concentration (BAC) to over 0.08 in Arizona and you sit in a parked car and doze off, you could be susceptible to a DUI charge. Basically, if a police officer knocks on the window and asks you to step outside and do a sobriety test when your BAC is over 0.08 you will be charged with a DUI.

Under what standard can I be charged with a DUI while in a stationary vehicle?

Arizona DUI laws apply to when you are even in physical control of a vehicle with a BAC over 0.08 or 0.04 if you are in charge of a commercial vehicle. A.R.S. §28-1381(A)(1);(4). Arizona courts will consider multiple factors in a totality-of-the-circumstances standard to determine what constitutes “actual physical control” of the vehicle.1 While the list is not exclusive, the court may consider whether the vehicle was running, where it was stopped, the time of day, weather conditions, whether ignition was on, whether the person was awake or asleep, and the position the driver was found in within the vehicle.2

It is not enough, of course, for you to just be in actual physical control of a vehicle if you are charged with a DUI. You need to have some kind of drug in your body at the time. For example, in one DUI case that involved a stationary vehicle an Arizona court held a man guilty of a DUI when he was passed out in the driver’s seat of his oddly parked car.3 He refused a breath test but was given field sobriety tests and was found to be in actual physical control of his vehicle while impaired.4 On the other hand, the court has determined before that if someone is pulled off to the side of the road asleep with the key in the ignition and without the engine running, that person may not be in actual control of the vehicle.5

Courts have noted that even if someone relinquishes actual physical control of the vehicle they can be convicted of a DUI if evidence shows they drove while intoxicated to reach that point of destination.6 Either way, this is a very fact-specific issue and thus it largely depends on your circumstances. Pulling your vehicle over, shutting off the engine, and relinquishing control of your vehicle are only factors that the court considers.7

Should I consult an attorney?

It is advisable that you consult an attorney if you are facing a DUI because you were in physical control of a vehicle. An experienced Phoenix attorney can help you navigate the DUI laws and evaluate your situation to determine the best route for you to take.

[1] Arizona Pattern Jury Instructions, RAJI (Criminal) NCSTI 28.1381(A)(1)-APC (3rd ed.)

2 Id.

3 State v. Love, 182 Ariz. 324, 325, 897 P.2d 626, 627 (1995)

4 Id. at 328.

5 State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983).

6 Love, supra note 3 at 327-28

7 Id. at 327.