Actual Physical Control (APC) DUI

Summary:

Actual Physical Control (APC) DUI charges apply when an impaired individual exercises control over a vehicle without driving it, creating significant legal exposure. In Arizona, this affects drivers found sleeping in parked cars, occupying running vehicles, or holding keys while intoxicated – even with no movement. Businesses with commercial fleets or employees using company vehicles face vicarious liability risks. Unique challenges include proving intent to operate the vehicle and navigating conflicting interpretations of “actual physical control” across jurisdictions. These charges trigger immediate administrative penalties and can jeopardize professional licenses, child custody arrangements, and employment prospects.

What This Means for You:

• Immediate Action: Demand a DMV hearing within 15 days of arrest under ARS 28-1321 to prevent automatic license suspension. Invoke your right to remain silent until consulting a DUI attorney familiar with Arizona’s State v. Zaragoza precedent redefining vehicle control standards.
• Legal Risks: Class 1 misdemeanor charges (up to 6 months jail/$2,500 fines) for first offenses; felony charges if minors are present (ARS 28-1383). Mandatory 90-day license suspension under ARS 28-1385 plus ignition interlock device (IID) installation for 12 months.
• Financial Impact: Expect $8,000-$15,000 in total costs including $5,000 SR-22 insurance premiums, $1,200 IID fees, $1,500 substance abuse treatment, $2,000 license reinstatement fees, and potential vehicle forfeiture under ARS 28-3511 for repeat offenses.
• Long-Term Strategy: Petition for set-aside of conviction under ARS 13-905 after completing probation. Pursue occupational licenses during suspension periods. Negotiate plea deals specifying “parked DUI” to mitigate employment consequences under federal Fair Credit Reporting Act regulations.

Explained: Actual Physical Control (APC) DUI:

Arizona strictly interprets APC under ARS 28-1381(A)(3) as exercising “direct influence” over a vehicle while impaired (BAC ≥0.08%) or drug-affected. Federal guidelines (23 USC 163) enforce license suspensions but state law governs criminal charges. The 2018 State v. Zaragoza ruling established three factors: 1) ignition status, 2) driver position, 3) vehicle location. Vehicle proximity to travel lanes increases APC likelihood even when parked.

Contrary to popular belief, “sleeping it off” in a parked car doesn’t guarantee immunity. Appellate courts consistently uphold convictions where defendants occupied driver’s seats with operable keys – including keyless ignition fobs in possession per State v. Thompson (2020). Arizona uniquely presumes APC if the defendant could have caused vehicle movement, distinguishing it from California’s stricter “volitional movement” requirement.

Types of APC DUI Offenses:

APC charges manifest differently based on vehicle control circumstances. “Resting DUI” occurs when drivers park to avoid roadside impairment but remain in operational control – e.g., napping in driveways with keys in cup holders. “Warming DUI” involves starting vehicles for climate control during cold/heat exposures. “Disabled Vehicle DUI” applies when intoxicated owners “supervise” tow truck hookups while maintaining physical presence in the cab.

Repeat offenders face aggravated APC charges when previously suspended (ARS 28-1383D) or controlling commercial vehicles (ARS 28-1382A3). Extreme APC DUIs (BAC ≥0.15%) carry mandatory 30-day jail sentences. Unlike standard DUIs, APC convictions don’t require driving records but mandate identical IID installations – a critical Appellate Division ruling in State v. Duran (2019).

Common Defences for APC DUI:

Effective defenses challenge the prosecution’s control evidence. The “impossibility defense” argues keys were inaccessible (e.g., locked in trunk per State v. Love). “Lack of intent” counters demonstrate alternate vehicle uses like charging phones or sheltering from weather. Body camera footage showing improper testing conditions can suppress BAC results, exploiting Arizona’s mandatory 20-minute observation period under ADC R9-14-403.

Technical defenses target IID calibration records (must be recalibrated every 30 days per ARS 28-1464) and ignition system forensics. In electric vehicles, proving the drivetrain was disengaged creates reasonable doubt. For prescription drug cases, “medical necessity” defenses require documented physician instructions and blood concentration logs.

Penalties and Consequences of APC DUI:

Sentencing mirrors conventional DUI penalties but includes enhanced APC-specific sanctions. First convictions require 10 consecutive jail days if BAC exceeded 0.15% (ARS 28-1382I). Commercial drivers face lifetime CDL disqualifications under FMCSA 49 CFR 383.51. All APC convictions carry 12-month IID mandates regardless of driving intent, per 2017 legislative amendments.

Collateral consequences include 3-year foreign visa ineligibility under 8 USC 1182(a)(2)(A)(i)(II) and lifetime firearm prohibitions under 18 USC 922(g)(1) if charged as felony APC. Employers may terminate workers per ARS 23-493’s “safety-sensitive position” clauses. Notably, APC charges appear identical to moving DUIs on MVD records – critical for employers conducting annual driving record checks.

The APC DUI Legal Process:

APC cases follow bifurcated proceedings: 1) MVD administrative actions, 2) criminal prosecution. Within 15 days post-arrest, the MVD hearing addresses license suspension based solely on officer reports. Criminal arraignment occurs at municipal/county courts where defendants plead to ARS 28-1381 charges.

Pre-trial phases involve subpoenaing vehicle computer logs (ECM data showing ignition cycles) and challenging field sobriety test validity. Unlike traffic DUIs, APC motions frequently dispute officer interpretations of “control” through defense accident reconstruction experts. Plea negotiations often focus on reducing charges to “public intoxication” (ARS 13-2905) to avoid mandatory IID requirements imposed even for non-driving DUIs under ARS 28-1461.

Choosing an APC DUI Attorney:

Specialized counsel must understand appellate-level APC precedents. Verify attorneys have defended ≥50 APC cases with published Arizona Appeals Court decisions. Prioritize firms retaining automotive engineers to analyze GPS data proving stationary duration. Fee structures should include Flat Rate Criminal Defense packages ($7,500-$18,000) covering all DMV/court proceedings. Avoid general practitioners unaware of ARC 600.5’s technical requirements for APC discovery motions.

Effective APC attorneys leverage jurisdictional nuances – Mesa City prosecutors typically offer plea deals unavailable in Phoenix. Demand access to the attorney’s past APC case dashboard showing suppression motion success rates. Confirm they maintain IID device error databases from providers like Intoxalock and Smart Start.

Other APC DUI Resources:

Arizona Judicial Branch DUI Guidelines: www.azcourts.gov/guidelines/DUI/DUI-and-APC
NHTSA Actual Physical Control Policy Review: www.nhtsa.gov/apcduipolicypaper.pdf

People Also Ask:

Can I get a DUI if my car was off?

Yes. Arizona’s actual physical control doctrine considers six factors per State v. Zavala: 1) ignition status, 2) engine temperature, 3) parking position, 4) defendant’s position, 5) vehicle ownership, 6) keys location. Even in turned-off vehicles, keys within reaching distance (e.g., center console) establish control under ARS 28-1381. Thermal imaging evidence showing recent engine operation can substitute for direct ignition proof.

Does sleeping in your car count as DUI?

Passenger seat sleeping with keys in trunk may avoid charges, but reclined driver’s seat positioning creates rebuttable presumption of control per State v. Cramer. Receipts documenting extended parking duration help prove non-driving intent. Notably, rideshare drivers sleeping between shifts face enhanced liability when app remains active.

What if my foot was on the brake while parked?

Foot brake engagement creates prima facie evidence of vehicle control under State v. Ochoa (2017). Prosecutors argue even stationary brake activation demonstrates operational command. Defense requires proving the foot placement resulted from impairment symptoms rather than driving intent.

Can I get APC DUI on private property?

Yes. ARS 28-1381 applies anywhere vehicles can operate, including driveways and parking garages. The 2021 State v. Ramirez expansion upheld APC convictions for drivers blocking private driveways while impaired. Only fully enclosed private land inaccessible to public traffic may provide limited exceptions.

Do ignition interlock requirements apply to non-driving DUIs?

Yes. ARS 28-1461 mandates 12-month IID installation after any APC conviction, including first offenses. Compliance verification requires monthly calibration checks at authorized service centers like Alcolock Arizona. Failure to install triggers mandatory 1-year license suspension under ARS 28-1464(B).

Expert Opinion:

Actual Physical Control convictions inflict lasting damage disproportionate to non-driving conduct. Strategic pretrial motions must challenge the state’s speculative intent evidence while negotiating reduced charges preserving driving privileges. Early intervention with credentialed substance abuse evaluators often mitigates sentencing through therapeutic diversion programs unavailable post-conviction.

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