Arizona Supreme Court Ruling Makes it Easier to be Convicted of a DUI

Defining "Actual Physical Custody" under Arizona Law

Arizona's driving under the influence (DUI) statute makes it a crime to either drive a vehicle while over the legal limit or to be in "actual physical custody" of a vehicle while over the legal limit. The language "actual physical custody" was added to the DUI statute in 1950. Since that time, Arizona courts have been grappling over how best to define what this means.

Under previous law, courts found that people could be successfully convicted of a DUI when they were in control of the vehicle but not actually driving it or having the car in motion. For example, if the driver was pulled over in a traffic lane and found sleeping with the car still running, the driver could be charged with a DUI. But if the driver was completely pulled off of the road and out of traffic, with the motor turned off and the keys inaccessible, the driver could not be found guilty of a DUI.

Thus, the distinguishing facts for determining whether a driver had actual physical control over the vehicle were: whether the vehicle was in a lane of traffic and whether the driver had immediate access to a vehicle running.

In 1995, the Arizona Supreme Court changed the standard and ruled that whether or not a driver could be found in actual physical custody of the car depended on the "totality of the circumstances" which meant juries were to look at all of the available facts, not just where the car was located and whether the car was turned on. The Court also provided examples of some of the factors that should be taken into account to make this determination (State v Love, 182 Ariz. 327 (1995)).

State v Zaragoza

The totality of the circumstances standard seemed to confuse courts all the more, resulting in inconsistent rulings. In State v Zaragoza, the Arizona Supreme Court decided to once and for all define what it means for a driver to be in actual physical custody of a car for purposes of being convicted of a drunk driving charge.

In Zaragoza, the police were called to an apartment complex where they saw the defendant, Vincent Zaragoza, stumbling in the parking lot and eventually getting into a car. The police then pulled up behind Zaragoza's car and shined their flashlights into the car. Zaragoza had one hand on the steering wheel and the key had been inserted into the ignition, but the car had not yet been started. Zaragoza argued that he was going to sleep in his car that night and was going to turn it on to roll down the windows and turn on the radio.

It was later discovered that Zaragoza had a revoked driver's license and a blood alcohol content of .357 at the time he was arrested. Since Zaragoza was not driving the vehicle at the time of his arrest, it came down to a question of whether or not he was in actual physical control of his car. The jury found that he was and convicted him of two aggravated DUIs, one for having a revoked license and the other for having a BAC greater than 0.08 with a revoked license.

On appeal, Zaragoza had his conviction overturned. The appellate court found that the trial court's instructions to the jury on the question of actual physical control were misleading. The trial court instructed the jury to find Zaragoza in actual physical custody of the car if his potential use of the car presented a real danger to himself or others. The appellate court objected to the phrase "potential use," reasoning that it allowed the jury to convict Zaragoza if he hypothetically could have exercised control over the car and harmed someone.

The Arizona Supreme Court, however, did not agree with the appellate court's ruling and upheld Zaragoza's conviction by the trial court. In its opinion, the Court stated that the jury still had to find that Zaragoza presented a real danger to himself or others and not a hypothetical or potential danger.

Factors for Finding "Actual Physical Control"

In Zaragoza, the Arizona Supreme Court also gave guidance on what it means for a person charged with a DUI to be in actual physical control of the vehicle. According to the Court, to be in actual physical control means that juries should consider the totality of the circumstances to determine "whether the defendant's current or imminent control of the vehicle presented a real danger to himself or herself or others at the time alleged." Thus, the Court changed the language from "potential use" to "current or imminent control" over the vehicle.

The Court also provided examples of some of the factors juries should consider when deciding if a defendant had actual physical control over a vehicle:

* Was the vehicle running?
* Was the ignition on?
* Where were the car keys located?
* Where and in what position was the driver found?
* Was the driver awake or asleep?
* Were the car's headlights on or off?
* Was the vehicle stopped?
* Did the driver voluntarily pull off the road?
* What was the time of day?
* What were the weather conditions?
* Was the heat or air conditioner on?
* Were the windows up or down?
* Was there any explanation for the circumstances shown by the evidence?


The decision in Zaragoza reinforces the seriousness of DUI charges in Arizona. Not only can you be found guilty of violating the state's drunk driving laws by driving a vehicle while intoxicated, you also can be found guilty if a jury finds you were in actual physical control of the car which could be the case even if the vehicle was not still in a lane of traffic, not in motion or not even turned on. So long as the jury finds that you had "current or imminent control" over the vehicle and presented a "real danger" to yourself or the public, you can be convicted of a DUI.

ABOUT THE AUTHOR: Blumberg & Associates, P.C.
Blumberg & Associates was founded in 1988 on the idea that everyone charged with a criminal offense in the state of Arizona deserves representation equal to or better than that of the prosecution. We are committed to providing that representation. Our Arizona criminal defense attorneys routinely represent clients for across the state including Maricopa County, Yavapai County, Coconino County, Pima County, and the cities of Phoenix, Mesa, Peoria, Tempe, Scottsdale, Prescott, Tucson, and Flagstaff.

Copyright Blumberg & Associates
More information about

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Find a Lawyer

Find a Local Lawyer