Phoenix Criminal Defense Attorney
Let a Former Prosecutor Fight for You You Don't Have to Face Tough Charges Alone

Can I Get an Arizona DUI for Sleeping It Off?

Most licensed drivers in Arizona are well-aware that it’s against the law to drive under the influence of alcoholic beverages or drugs (including prescription medications), but there’s a lesser-known alcohol offense that all drivers should be aware of, it’s called actual physical control, but it doesn’t involve actual driving.

Like many other states, in Arizona you can be arrested for DUI, even if you are NOT driving. Meaning, you can be arrested for being in “actual physical control” of a vehicle under Section 28-1381 of the Arizona Revised Statutes. Under this section, you can be charged if you are under the influence and have the immediate ability to drive a vehicle.

Under Sec. 28-1381 it reads, “It is unlawful for a person to drive or be in actual physical control of a vehicle in this state” under the following circumstances:

  • While under the influence of alcohol, any drug, or any vapor releasing substance, or any combination of the above,
  • With a blood alcohol concentration of .08% within two hours of driving or being in actual physical control of a vehicle, or
  • While there’s a drug covered under Section 13-3401 in the body.

What Counts as Actual Physical Control?

What does it mean to be in actual physical control of a vehicle while under the influence? While it does not mean driving, it has to do with being capable of driving. If an actual physical control case makes it to court, the jury will consider the totality of the circumstances before deciding if the DUI defendant was “in actual physical control” of the vehicle before the DUI arrest.

The jury would ask:

  • Where was the defendant sitting?
  • Where were the keys?
  • Was the vehicle running?
  • Was the driver awake or sleeping?
  • Was the air conditioning or heat on?
  • Were the headlights on?
  • What was the weather like?
  • Were the windows rolled up or down?

Actual physical control laws were established throughout the country because drunk drivers were parking their cars and walking or running away so they could avoid driving under the influence charges. The drivers’ goal was to avoid DUI charges because they “weren’t driving” after they fled the scene. Actual physical control laws fixed that.

If you are under the influence of drugs or alcohol and you’re sitting in a parked car, or sleeping the alcohol off in the driver’s seat, or even in the passenger seat but the keys are close by, you can be arrested for being in actual physical control under Sec. 28-1381, which incurs the same penalties as a standard DUI.

Related: 8 Alcohol Offenses You Should Know About in Arizona

Looking for a Phoenix DUI attorney? Contact our firm to fight your DUI charges!