Police release suspect after 17 months behind bars

Police release suspect after 17 months behind bars: Jurors acquitted Freddie Payan after his lawyers proved he was no where near the scene of a shooting that nearly killed a six year old boy. (4/11/2012)

But I wasn't driving, how could I get a D.U.I?

A close friend recently asked me about AZ D.U.I. law and what is considered "actual physical control?"  I told her that it depends.  She was furious.  Yes, one would think that "actual physical control" means exactly what this legal term of art says... Someone actually was controlling the vehicle at the time they were under the influence of alcohol, and their B.A.C. (blood alcohol content) was over a .08.  Well, think again.  Pursuant to Arizona criminal statutes and case law, "actual physical control" has several meanings and most of them do not actually pertain to "controlling" the vehicle at all.  This means, if you were in a car, sitting in the driver's seat, with the key in the ignition and your B.A.C.  was .08 or more, you could be charged and convicted of being in "actual physical control" of a vehicle; even if there was no direct proof you were driving.  

So how does this work?  Because there is no distinction between factual and circumstantial evidence in Arizona criminal law, you can be convicted if there is adequate evidence presented to prove you were driving the vehicle at a point in time, while you were under the influence of alcohol.  This is true even if the police officer that arrested you never saw you driving prior to your arrest.

Here is an example:  You just left the bar after having a few drinks and decided that you could make it home.  You get in, drive a few hundred yards and decide that you need to pull off of the road and sleep it off.  You pull over, park in a commercial parking lot. You roll down the window and turn the car off.  Officer Friendly sees your vehicle and decides to check it out.  He sees you asleep and wakes you up.  He asks, "are you OK."  You state, "yes, I was feeling a little tipsy and decided to sleep it off."  Thanks, I'm OK.  No, you aren't OK anymore, you are busted.  You can cancel Christmas!  

Here's how it will play out in Court.  The government will argue that you were in "actual physical control" of the vehicle while under the influence of alcohol.  Remember, based on the above hypothetical, you told Officer Friendly that you were feeling tipsy and decided to sleep it off.  Your B.A.C. was tested within two hours of you being in “actual physical control,” this is what Officer Friendly will say at least.  In legal terms, this means you were driving the vehicle under the influence of alcohol.

Circumstantially, you were driving while intoxicated to reach the place where you had pulled off of the road.  The key was in the ignition when Officer Friendly met you and [if not for the officer] you were able to place the vehicle in a position that could harm yourself or others.  These are just a few of the factors the court and the Jury will look at.  It is called the totality approach.  

Now, you can't make this stuff up.  The best way to beat an AZ Criminal D.U.I. charge is to not drink and drive.  If you happen to make a mistake and are charged with a D.U.I. in AZ, you need to hire an AZ Attorney well versed in AZ Criminal Law.  Being charged with a D.U.I., is no laughing matter.  Although this blog pokes fun at AZ D.U.I. Law, Blackwell Law Office, PLLC understands AZ D.U.I. Law, is serious about AZ D.U.I. Defense and will fight to get your case dismissed at or before trial.