The DUI With No Driving - Part 1

 

 

DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

 

Scottsdale DUI: Home Detention Is Here (Almost)

I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program.  It appears that they have finally implemented the program.  Here are the minimum qualifications based on the information I was given at court.

  • The date of your offense must be after May 27, 2010; and
  • You must start your self-surrender date on or after October 1, 2010

There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions.  In addition, keep in mind: (1) admittance into the program is not automatic.  The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program.  Thus, this program is for lengthier terms of incarceration.

If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow