Commentary

Can someone who is not driving be convicted of DUI?  They certainly can in Arizona, Florida, Illinois, Washington and other states.  While the law that deals with this is fairly simple to understand and apply, a recent Arizona Supreme Court case is an example of how courts can take even the most straightforward law and create enough confusion and uncertainty to keep legions of lawyers employed full time. 

“Actual Physical Control”: How Arizona’s DUI Law Came to Be So Confusing in Cases of Non-Driving Drivers

The specific law in question is Arizona’s DUI statute, § 28-1381(A)(1).  That statute makes it “unlawful for a person to drive or be in actual physical control of a vehicle . . . [w]hile under the influence of intoxicating liquor.” From this language it is clear that someone can be convicted of DUI in Arizona even though they are not driving.  For example, if a police officer comes across a car stopped at a green light with the engine running and someone intoxicated and passed out at the wheel, that’s probably a solid DUI case.  But what does “actual physical control” mean?  

This language was added to the statutes in 1950, without any definition of “actual physical control.”  Again, similar language is found in many other states, including Florida and Illinois.  The trouble started in 1983.  A truck had been parked in the emergency lane of a freeway, with the driver passed out at the wheel, the keys in the ignition, but the engine turned off.  The Arizona Supreme Court held in State v. Zavala that this driver was not in “actual physical control” of the truck.  The Court explained 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.”{footnote}136 Ariz. 356, 666 P.2d 456 (1983).{/footnote} This would have been a reasonable thing for the legislature to allow, but the legislature said nothing about pulling off the road when it revised the statute in 1950.

The Zavala decision, by ignoring the statute’s plain language, led to problems for later courts.  They woodenly applied the holding so that if a car was out of traffic with the engine off, then the defendant could not be convicted of DUI.  Later, the absurdity of this result became clear.  Even if an engine is turned off, it takes only a moment to turn it on.  How can such a simple act make such a difference?   

To resolve this, in 1995 the Arizona Supreme Court in 1995 did away with the simple bright-line test of Zavala and held in State v. Love that “actual physical control” must be determined by a “totality approach.”{footnote}182 Ariz. 324, 327, 897 P.2d 626, 629 (1995){/footnote} This approach is used whenever courts cannot provide any meaningful guidance, so they essentially resort to telling juries, “You’ll recognize it when you see it.”  It doesn’t work very well for car directions, and certainly doesn’t work well to make the law understandable. The Love case created great confusion for the lower courts in Arizona, who weren’t sure what it meant.

The Arizona Supreme Court Punts Again on DUI

In the most recent case, State v. Zaragoza,{footnote}No. CR-08-0286-PR (Jun. 3, 2009){/footnote} the defendant was charged with drunk driving and these were the facts:

In the early morning of April 29, 2006, a Tucson police officer responded to an emergency call at an apartment complex. Outside the complex, the officer saw Defendant Vincent Zaragoza holding on to cars as he staggered through the parking lot toward his own vehicle. Zaragoza entered his car, and the officer pulled up behind him. When the officer shined his flashlight inside the car, he saw Zaragoza in the driver’s seat with one hand on the steering wheel as he inserted the key into the ignition with the other hand. Zaragoza had not yet started the car. The officer instructed Zaragoza to exit, and he complied, nearly falling as he did so….

Zaragoza testified at trial that he intended to sleep in the car after having an argument with a woman inside the apartment complex and that he only planned to start the ignition to roll down the window and turn on the radio. He denied any intention of driving.

A non-lawyer unaware of the tortured history of the DUI statute would see this as a simple case.  Zaragoza was in the car with the keys, so he was in “actual physical control” of the car.  Case closed.  And indeed, Zaragoza was convicted by a jury. But the Arizona Supreme Court, while it upheld Zaragoza’s conviction, crafted a new jury instruction to be given in the future, explaining that “actual physical control” must be determined based on a number of factors, including:

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. 

It depends on the weather? It depends on the time of day?   As my kids would say, “Huhwhat?” I think what we see here is an attempt by the Court to soften what it apparently felt was a harsh DUI law by crafting a strange and nebulous “totality” defense that can be litigated endlessly.  The right result would have been to simply leave the statute for the legislature to fix, if indeed it is even broken.  Juries should be able to apply the “actual physical control” standard without this strange and confusing list of factors, many of which have no clear bearing on the issue of control.

So What Should You Do If You Find Yourself Driving Intoxicated in Arizona?

Based on the Zaragoza decision, anyone who finds they are driving intoxicated in Arizona should pull completely out of the traffic lanes, turn off the engine, then lock themselves out of the car with the windows rolled up.  Then they should lash themselves to a road sign with a belt or battery cables, pray for some kind of exonerating weather, and go to sleep.

But it really depends on the time of day.