Recently, I've received inquiries from several individuals who have been contacted by police, arrested and charged with DUI even though they were not operating a vehicle on a public roadway. Some examples of these include a person arrested while sitting in his car within an apartment complex parking lot, someone parked at a fast food establishment, a person sleeping in his car inside a parking structure and even another individual who was simply backing out of their own driveway.
The Law Regarding DUI in Arizona
Arizona law does not distinguish between public roads, semi public areas (such as business parking lots) and private property in determining whether someone can be charged with DUI. A person can be charged with DUI after being stopped and arrested while:
- On a Public Roadway
- In a Business Parking Lot
- In a Gated Community
- On a Private Roadway
- On Private Property
Simply put, A.R.S. 28-1381 states that
"It is unlawful for a person to drive or be in actual physical control of a motor vehicle while under the influence or impaired to the slightest degree by alcohol, drugs or a combination thereof, or if the person has an alcohol concentration above .08% within two hours of driving or being in actual physical control of a vehicle."
Similarly, Arizona's Extreme and Super Extreme DUI statute (A.R.S. 28-1382), prohibits someone from operating a motor vehicle or being in actual physical control of an automobile anywhere in the state with an alcohol concentration above .150%.
Consequently, the threshold issue in a DUI case is not where you were driving but rather, whether you were actually driving or in "actual physical control of a motor vehicle."
Actual Physical Control of a Motor Vehicle
Most DUI charges result from a traffic stop after police observe a motor vehicle violation such as speeding, weaving, failing to stop at a red light or stop sign, making a wide turn, etc. However, in "non-driving" situations you can be charged with DUI if police believe you were in "actual physical control of a vehicle." This commonly occurs when someone is asleep in their car, pulled over to the side of the road or when a car becomes disabled prior to you being contacted by police.
There is no bright line rule to determine whether a person is in "actual physical control" of a motor vehicle. Rather police, a prosecutor, judge or jury must examine a number of factors to determine whether a DUI charge and subsequent conviction is justified. Some of the items which must be considered include:
- Where a vehicle was located
- Whether the vehicle was running
- Whether a person was awake or asleep in the car
- Where the person is situated in the car
- How long the vehicle was parked prior to being contacted by police
Arizona has a reputation for imposing some of the harshest penalties in the country upon people who have been charged with DUI, Extreme DUI, Super Extreme DUI and Aggravated DUI. A conviction will result in mandatory jail terms, a suspension or revocation of your drivers license, mandatory counseling classes, an ignition interlock device and thousands of dollars in fines. If you have been charged with DUI in Phoenix, Tempe, Scottsdale or any city within Maricopa County, it's extremely important to contact an experienced DUI defense lawyer who can help you avoid many of the harsh consequences which can accompany a DUI conviction.
Call (480) 833-8613 For Help With Your DUI Case
Undoubtedly, DUI can result in very severe penalties. If you are charged with DUI in any city within the greater Phoenix area, you should immediately consult with an experienced DUI lawyer for assistance. Attorney Raymond Kimble is a former police officer, DUI and felony prosecutor and has represented thousands of people charged with DUI in Tempe, Mesa, Chandler, Gilbert, Scottsdale, Phoenix and other cities throughout Maricopa and Pinal Counties over the last twenty years. Ray Kimble will have a clear understanding of all the circumstances in your case, along with the knowledge, skill and experience to protect your drivers license and achieve the best possible outcome for you.
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