Before someone can be found guilty of a crime, the prosecution must prove each element of the offense beyond a reasonable doubt. When it comes to Arizona DUI charges, the prosecution must show not only that the driver was intoxicated, but also that they were in “actual physical control” of the vehicle. This is commonly referred to as the “operation” element. Recently, a state appellate court issued an opinion in an Arizona DUI case discussing the operation element, and what the prosecution must prove to sustain a conviction.
According to the court’s opinion, a police officer was on routine duty when he noticed a vehicle pulled over to the side of Interstate 10, with its flashers on and with the rear of the vehicle protruding into the roadway. As the officer approached the car, he could see that the driver was asleep and that there was a child unbuckled in the back seat. The officer opened the door and found an open can of beer, and the remains of a twelve-pack. The car was off, but the key was in the ignition, the car was in drive, and the hood was warm.
When the officer asked the defendant to get out of the car, he noticed that the defendant was unsteady and had bloodshot, watery eyes. The defendant told the officer he was not driving the car and that he “just pulled over.” A chemical test revealed that the defendant was intoxicated, and he was then arrested and charged with drunk driving.