Prosecutors charged the defendant with several DUI offenses, and in the alternative, the State alleged actual physical control of a vehicle under the influence. The jury convicted the defendant of all counts. Amongst several issues, the defendant argued that he should not have been convicted of actual physical control because the indictment did not include those charges.

Under Arizona law, Statute 28-1381(A)(1), it is illegal to drive or have actual physical control while under the influence or impaired. Specifically, a person may not maintain control or drive a vehicle if they are under the influence of liquor, any drug, any vapor releasing substance containing a toxic substance, or any combination of these substances. Courts will determine whether a party had “physical control” by examining a host of factors. Some relevant factors include:

• Whether the Driver is asleep or awake;
• Whether the vehicle’s headlights were on;
• Whether the vehicle was legally parked or stopped;
• Whether the motorist voluntary pulled over to the side of the road;
• The time of day; and
• Whether the vehicle’s heat or air conditioning was running.

In addition to the defendant’s claim that the indictment was for driving, not actual physical control, he maintained insufficient evidence of actual physical control. The court reasoned that the State did not maintain an obligation to notify the defendant that he would be prosecuted under an actual physical control theory. Further, they opined that a jury could reasonably conclude that the defendant drove himself between the bar and restaurant. The court found that the defendant’s askew parking, his intoxication and inability to provide contact information for the friend he stated drove him, could lead a jury to infer that he had control of the vehicle. Further, there was testimony that the keys were in the ignition, he was awake and in the driver’s seat. Ultimately, the court affirmed the defendant’s conviction.

Have You Been Charged with a DUI in Arizona?

If you have been charged and arrested for an Arizona DUI, contact the Law Office of James E. Novak. Attorney Novak has successfully represented numerous DUI defendants in Arizona during all stages of their criminal cases. For nearly 20 years, Attorney Novak has defended those accused of Arizona crimes. He handles Arizona cases stemming from DUIs, assaults, theft, burglary, weapons offenses, domestic charges, probation violations, and drug charges. Attorney Novak’s holistic approach, vast experience, and loyalty to his clients make him a valuable asset to anyone facing Arizona drunk driving charges. Contact attorney Novak at 480-413-1499, to discuss your Arizona criminal charges.

The Facts of the Case

According to the court’s opinion, police officers received a call for people sleeping in a car. Police officers arrived on the scene, and noticed that the vehicle had been in an accident. Officers woke the passenger up without issue, but the defendant was “in and out of it,” and exhibited signs of intoxication, including slurred speech and confusion.

Police officers administered field sobriety tests, the results of which led them to believe the defendant was under the influence of alcohol or drugs. Subsequently, the police arrested the defendant, who then told them that he had driven to the store to buy some food, and fell asleep after pulling over. Police ordered chemical testing of the defendant’s blood, which indicated he was under the influence of methamphetamine and amphetamine.

In a pre-trial motion to dismiss, the defendant argued that the case should be dismissed under the “stationary shelter” rule. The stationary shelter rule prohibits a person’s prosecution for DUI when they are using the vehicle as a temporary stationary shelter. The rationale behind the rule is that, when someone is resting or sleeping in a vehicle that is not running, they are not in actual physical control of the vehicle. It also incentivizes intoxicated people to pull over when they know they are a danger. Here, the defendant claimed that the prosecution was speculating that he was operating the vehicle while he was in an intoxicated state.

The court rejected the defendant’s argument, affirming his conviction. The court explained that the prosecution was not speculating about the defendant’s condition because 1.) there was video surveillance showing the truck pulling into the store’s parking lot, and 2.) the defendant admitted to having driven the car when asked by police officers. Thus, while the stationary shelter rule could apply in similar cases, the court held that it did not apply in this case.

Have You Been Arrested for an Arizona Drunk Driving Offense?

If you have recently been charged with an Arizona DUI crime, reach out to Attorney James E. Novak for immediate assistance. Attorney Novak has decades of experience representing clients charged with drunk driving offenses, and knows what it takes to mount a successful defense in these challenging cases. He understands that having a criminal case hanging over your head is incredibly stressful, and makes he makes himself available to his clients to answer any questions when they come up. To learn more, call 480-413-1499 to schedule a free consultation with Attorney Novak. Or, you can also reach our office through our online form.

According to the court’s opinion, the defendant’s parents called police after they noticed that their new truck was missing. They told the police that their son, the defendant, had been drunk earlier in the day, and that they believed he stole their truck and drove it while under the influence. Because the defendant had a prior DUI, he was required to have an ignition interlock installed on any vehicle he drove.

Not long after speaking with the defendant’s parents, police officers located the truck with the defendant asleep inside. The truck’s lights were on, but the engine was off, and the keys were not in the ignition. Police woke the defendant up, who told them that the keys were “where they were supposed to be.” However, the defendant did not elaborate, and the officers never found the keys.

Police officers took a sample of the defendant’s blood, which revealed his blood-alcohol content was nearly four times the legal limit. The defendant was arrested, charged, and convicted of several DUI offenses.

On appeal, the defendant argued that he could not be found guilty of driving under the influence because he did not have the keys, and the keys were never found.

The Appellate Court’s Opinion

On appeal, the court affirmed the defendant’s convictions. The court began its analysis by noting that state law requires the prosecution to show that a defendant was either driving or in actual physical control of the vehicle while under the influence of intoxicating substances. However, the discovery of an ignition key is not imperative. The court explained that, even in situations where the defendant no longer has control over the vehicle, “if it can be shown that such person drove while intoxicated to reach the place where he or she was found, the evidence will support a judgment of guilt.”

Thus, the court concluded that, although the defendant was not in actual control of the vehicle at the time police discovered him asleep behind the wheel, because he must have driven drunk to get to where he was found, he could be found guilty of DUI.

Have You Been Arrested for an Arizona DUI Offense?

If you have recently been charged with a DUI offense, contact Attorney James E. Novak for immediate assistance. Attorney Novak is a veteran Tempe DUI defense attorney with decades of experience litigating all types of drunk driving cases – from first-time offenses to Extreme DUIs. As a former prosecutor, Attorney Novak understands how the other side sees these cases and uses this knowledge to effectively craft a defense for each of his clients. To learn more about how Attorney Novak can help you defend your freedom from the allegations you face and to schedule a free consultation today, call 480-413-1499.

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.

At trial, the defendant conceded that he was intoxicated, but argued that there was insufficient evidence for the judge to find that he was in “actual physical control” of the car. The trial court denied the defendant’s motion for acquittal, and the defendant was convicted.

On appeal, the defendant again argued that there was insufficient evidence establishing he was in physical control of the car. The court began its analysis by noting that a defendant is in actual physical control of a vehicle when “under the totality of the facts, the person posed a threat to the public by the exercise of present or imminent control” over a vehicle while impaired.” The court went on to explain that relevant facts include whether the engine is running, the driver’s position inside the car, and the location of the car.

Here, the court found that the evidence was sufficient to sustain the defendant’s conviction. The court noted that the defendant was found sleeping in a car that was partially obstructing the road with the keys in the ignition. The court also pointed out that the hood of the vehicle was warm and that the car was in drive.

Have You Been Arrested for an Arizona DUI Offense

If you have recently been arrested and charged with an Arizona DUI offense, contact Attorney James E. Novak for immediate assistance. Attorney Novak is a well-respected and knowledgeable Arizona criminal defense attorney with extensive experience handling all types of Arizona DUI offenses. To learn more about how Attorney Novak can help you defend against the allegations you are facing, call 480-413-1499 today.

In Arizona, a DUI conviction carries serious consequences including the punishments doled out by the state, but also in terms of the collateral consequences that come along with a conviction. Thus, it is important to clear up the common misconception that an Arizona DUI case cannot be fought. In fact, there are several ways that an experienced Arizona DUI defense attorney can help a client beat their DUI case.

Motions to Suppress

If evidence that the state plans to use against a defendant was obtained in an unlawful manner, the defendant can file a motion to suppress that evidence. If the motion is granted, then the prosecution will be precluded from using the evidence. In many Arizona DUI cases, this leaves the prosecution with little evidence that a motorist was under the influence and may result in the withdrawal of a case.

There are many reasons a defendant may file a motion to suppress, including:

• Disputing the validity or duration of a traffic stop;
• Arguing that there was a lack of probable cause to arrest the defendant on suspicion of DUI; and
• Challenging the reliability or methodology of the chemical test results.

Challenges to the Sufficiency of the Evidence

If there is no viable motion to suppress, or the court denies a defendant’s motion, an Arizona DUI may still be fought at trial. To prove someone guilty of an Arizona DUI, the prosecution must establish both the operation and intoxication elements. More precisely, the prosecution must establish that the defendant was in “actual physical control” of the vehicle and was “under the influence” of a substance.

Under Arizona case law, a driver can be in actual physical control of a vehicle when the vehicle is not moving. However, courts consider many factors when assessing this element including the driver’s location in the vehicle, the location of the keys and whether the car is running. In some Arizona DUI cases involving an accident, police arrive on the scene after the defendant has exited the car. This can create difficulty for the prosecution in establishing who was driving at the time of the accident.

When it comes to establishing the intoxication element, most alcohol DUIs rely on a chemical testing that shows the driver’s blood-alcohol level was over the legal limit. In some cases, Arizona law allows for a driver to be convicted of a DUI even when their blood-alcohol content is less than the legal limit. This is called “slightest impairment” DUI. However, when the prosecution moves under a slightest-impairment analysis, mere proof of alcohol in a driver’s blood will not be sufficient to sustain a conviction; the state must also show that the driver was actually impaired by the alcohol.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested for an Arizona DUI, you may have more options than you think. Many Arizona DUI cases can be fought. At the Law Office of James Novak, we take pride in our extensive history defending the rights of those charged with DUI offenses. Attorney Novak is a veteran Arizona criminal defense attorney with decades of experience handling all types of Arizona DUI crimes, and fights vigorously on behalf of each of his clients. To learn more, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• A.R.S. section 13-3925
• A.R.S. section 28-1381

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: Court Discusses Spousal Privilege in Recent Arizona DUI Case, Phoenix DUI Law Blog, December 11, 2018

Arizona’s Underage DUI Laws, Phoenix DUI Law Blog, January 10, 2019

The Facts

The defendant was found unconscious behind the wheel of her vehicle by a firefighter who was conducting a wellness check. The defendant’s car was parked across several parking spaces. The firefighter knocked on the window until the defendant awoke, at which point he reached in and turned off the vehicle.

As the fireman was talking with the defendant, a police officer arrived. The police officer asked the defendant for her identification, and she handed him her debit card. The defendant eventually provided the officer with her identification. The officer claimed he noticed signs of intoxication, and asked the defendant to perform several field sobriety tests. In the officer’s assessment, the defendant failed the tests and she was arrested for DUI.

more The Issue

The case presents an important and often misunderstood issue that comes up in many Arizona DUI cases. In order to be convicted of a DUI offense in Arizona, the prosecution must establish that the defendant was either driving or in actual physical control of the vehicle. While most Arizona DUI cases are brought when the defendant is actually driving the car, it is not uncommon for someone to be charged with a DUI even when the car was parked, stopped, and turned off.

As noted above, Arizona makes it illegal to be in “actual physical control” of a vehicle while intoxicated. When it comes to determining actual physical control, courts look to a variety of factors. A few of these factors are:

• Whether the vehicle’s engine was running;
• If the vehicle was not running, the location of the keys to the vehicle;
• If the engine was running, whether the car was in park;
• The manner in which the vehicle was parked;
• The location of the defendant in the vehicle;
• Any statements made by the defendant; and
• The presence of any other people in the car.

The Court’s Decision

The court in this case determined that the evidence was sufficient to prove the defendant was in actual physical control of the vehicle. The court noted that when the officer approached the defendant’s vehicle, she was behind the wheel, with the keys in the ignition, and the engine was running. This, the court held, was sufficient to establish actual physical control.

Of course, this determination is highly fact-specific, and every case is different. Anyone who has been charged with an Arizona DUI should consult with a dedicated Tempe DUI attorney to discuss their case.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested and charged with an Arizona DUI, contact Attorney James E. Novak. As a former prosecutor, Attorney Novak has decades of experience handling Arizona DUI cases on both sides, and puts that knowledge to use for his clients. To learn more about how Attorney Novak can help you, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• A.R.S. § 28-1381

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: DUI And No Insurance: What You Should Know, Phoenix DUI Law Blog, May 1, 2018

Nearly 300 DUI Arrests Were Made in Arizona over 4th of July Weekend, Phoenix DUI Law Blog, July 9, 2018

The reason that these situations are covered under Arizona’s DUI statute is because the statute makes it illegal for “a person to drive or be in actual physical control of a vehicle” while intoxicated. Of course, not every case where an intoxicated motorist is found inside a vehicle will result in a DUI charge. For example, if someone was sleeping in the back seat of the vehicle while parked with the keys out of the ignition and a cold engine, there would be a good argument that they were not, and did not intend to be, in “actual physical control” of the vehicle.

Cases in which a defendant is arrested and charged with DUI while parked or while the car was off depend heavily on every small fact. An experienced Arizona criminal defense attorney can help anyone charged with an Arizona DUI charge understand what they are facing and how they may be able to defend against the charges.

more Man Arrested for DUI after Passing Out and Parking on the Highway

Recently, a man was arrested and charged with a series of crimes, including DUI and second-degree murder, after a woman rear-ended his parked vehicle. According to a local news report, the man had pulled his Jeep over into the leftmost lane shortly before 3 a.m. Moments later, several cars approached in the same lane. The first vehicle changed lanes in time to avoid a collision, but the second vehicle was unable to do so and crashed into the rear of the Jeep. The driver of that second vehicle died.

The driver of the Jeep told police that he was on his way home from the bar after having four beers. Police also noted that he smelled of alcohol after they removed him from the vehicle. He was arrested and charged with DUI and second-degree murder, among other charges.

Have You Been arrested for an Arizona DUI?

If you have recently been arrested and charged with an Arizona DUI offense, you should contact the Law Office of James E. Novak. Attorney James E. Novak is a dedicated Arizona DUI defense lawyer with over 17 years of practical experience representing those charged with serious crimes in Maricopa County. He understands that the collateral consequences that come with a conviction of any kind can be life-changing for his clients, and he stands up for his clients’ rights at every step throughout the process. To learn more, and to schedule a free consultation with Attorney Novak, call 480-413-1499 to schedule your free consultation today.

Additional Resources:

• A.R.S. § 28-1381

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: DUI And No Insurance: What You Should Know, Phoenix DUI Law Blog, May 1, 2018

Marijuana DUI: Financial Penalties in Arizona, Phoenix DUI Law Blog, April 1, 2018

Let’s explore the issues of actual physical control right now, and offer some insight into these kinds of legal disputes.

Liberal Interpretations of “Drunk Driving”

Sometimes people are charged with drunk driving even when they are not driving at all. We’ve heard of cases in which people are issued a DUI for sleeping behind the wheel of their car. A person may not even be driving but just sitting behind the wheel listening to radio, running the air conditioning, or using their phone. Even in these cases, a person may be charged with a DUI.

Rather than fight these cases in court, people may instead accept their drunk driving charges without dispute.

The Issue of Actual Physical Control (APC)

“Actual physical control” is the reason people may be charged with drunk driving even when a vehicle isn’t running. Being in physical control of a vehicle means that the person behind the wheel could pose a potential threat to others. The wording is vague, which gives law enforcement a lot of leeway for its interpretation. Some reads of the law are more lenient than others, which could spell trouble for a person trying to abide by the law and avoid driving while drunk.

Factors That Help Determine Actual Physical Control

To determine actual physical control, a court may consider the following factors:

• Was the vehicle running?
• Were the keys in the ignition?
• Where was the driver sitting?
• Where was the vehicle parked?
• What time of day was it?
• What was the weather/temperature?

How to Safeguard Yourself from DUI Charges

To avoid getting embroiled in a debate over actual physical control, it’s important that you play things safe when you’re trying to abide by the law. Consider the following tips:

• Consider getting a ride from a friend
• Hire a cab or car to get home
• Try to sober up outside of your vehicle
• Do not put the keys in the ignition if possible
• Make sure the vehicle is safely parked
• Avoid sitting or resting in the driver’s seat

How a Drunk Driving Attorney Can Help You

These questions of physical control can be complex and academic, which means having a skilled attorney on your side can help you build a winning defense. A DUI attorney knows how the drunk driving laws work, and can note various circumstances of your case that can help get charges reduced or thrown out. We will work with you every step of the way, offering expert counsel and providing peace of mind.

Speak with an Experienced DUI Attorney

For more information about your legal options in a drunk driving case, be sure to contact an experience DUI defense lawyer today. Our team will work with you to help fight charges, reduce penalties, and help ensure you receive a fair shake from the law.

Yet DUI cases can become complicated, particularly when laws regarding actual physical control (APC) can lead to drunk driving charges while people are in stationary vehicles. Let’s explore this topic with regard to sleeping while in your car.

Sleeping It Off May Not Be a Way to Avoid DUI

Many people think that as long as you aren’t driving a car while drunk, you can’t be charged with drunk driving. Because of this, they may sleep in their parked car until they are sober. Sleeping it off seems like a way to avoid drunk driving charges, but it isn’t so cut and dry.

Sometimes people are issued DUIs for sleeping in their vehicle. Even when the car is not moving and the motor isn’t running, they’ll get arrested for a DUI.

The Law Regarding Drunk Driving Charges

Arizona state law says that it is illegal for a person to drive or be in physical control of a vehicle when their BAC is .08 or over. There is no leeway for sleeping in your vehicle, but there are ways that police officers can interpret the law depending on the circumstances of your case.

The Issue of Physical Control of a Vehicle

If you are found asleep in the driver seat of your vehicle with the keys in the ignition and your seat belt on, this might be interpreted (albeit liberally) as being in control of the vehicle. If you are parked along the side of the road rather than on a street or in a parking lot, it could also bee argued that you drove while drunk before eventually stopping to sleep until you are sober.

There are so many potential factors and complications to take into account in such matters. Rather than take a chance by sleeping in your vehicle, it’s better to consider other options if you are drunk and wish to avoid driving.

Try to Get a Ride or Stay at a Friend’s Place

If you are drunk and unable to drive yourself home, it’s best to get a ride from friends, hire a cab, or stay with a friend until you are sober. You can return to pick up your vehicle at a later time as needed. This helps prevent you from getting behind the wheel and having to deal with the myriad complications of DUI arrests in a vehicle that is not moving.

Tips on Sleeping It Off Legally

If you have no choice but to sleep it off until you are sober to drive, consider the following tips that can keep you safe and avoid a DUI charge:

• Do NOT put the keys in the ignition
• Do NOT turn on the headlights
• Place your keys in your pocket, purse, or the glove compartment
• Sleep in the passenger sear or the backseat of your vehicle
• Make sure you are parked in a safe place rather than the shoulder of a road
• Avoid driving until you are completely sober

Speak with an Experienced DUI Attorney

For more information about your legal options in drunk driving cases, be sure to contact an experience DUI defense lawyer today. An experienced attorney can help you understand your best legal options and will fight for you every step of the way.