DUI WHILE PARKED
In most DUI cases it seems to be given that any person arrested for DUI was driving the car. After all, the “D” in DUI stands for Driving Under the Influence. However, what happens when a person is behind the wheel of car, but not necessarily driving? They can still be charged with DUI. While they can still be charged with a DUI, this type of DUI cases is very defensible.
CAN YOU BE ARRESTED FOR DUI WHILE PARKED?
Yes, you can. One of the essential elements for a DUI is that you either are driving or you are in Actual Physical Control of a car. Actual Physical Control, referred to as “APC” for short, means that you must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether you are actually operating the vehicle at the time.
CAN YOU BE ARRESTED FOR DUI WHEN YOU TRY TO DO THE RIGHT THING AND SLEEP IT OFF? WHAT IT IF YOU NEVER INTENDED TO DRIVE?
Yes, you can. Although it may not seem right, you can still be arrested for DUI even if you wanted to do the right thing and never intended to drink and drive. As described above, Actual Physical Control refers to you having the capability to operate the vehicle, regardless of whether you are actually operating the vehicle at the time.
WHAT DETERMINES WHETHER YOU HAVE ACTUAL PHYSICAL CONTROL OF A VEHICLE?
There are several factors to examine when determining whether you were in Actual Physical Control of a car. One of the most important factors to examine is the location of the keys in relation to the driver. If the driver is in the driver’s seat and the keys are in the ignition and the car engine is on and running, there is a greater case that the driver had the capability to driver. The argument is weaker if the car is not running and in park. That argument becomes even weaker if the keys are not on the ignition and not in the possession of the driver. For example, the keys are in the back seat or on the hood of the car. The argument for Actual Physical Control is extremely weak if you are not in the driver’s seat.
Another factor to examine when determining Actual Physical Control is the location of the car. If the car is stopped in the middle of the road in gear with a foot on the brake with the engine running, then the driver has the capability of operating the vehicle. If the car is properly parked in a marked and safe location the argument that the driver is in Actual Physical Control of the vehicle is not as strong.
CAN YOU BE ARREST FOR DUI IF THE CAR WAS BROKEN DOWN, COULD NOT BE DRIVEN OR INOPERABLE?
This a defense is a valid defense to a DUI charge. However, it is not a defense if you were driving under the influence before the car became inoperable. For example, a person committed a DUI, and because they were impaired, crashed the car causing the car to become undrivable. A skilled DUI lawyer can distinguish between these two scenarios. For example, the police will have to take very detailed notes to prove the latter. They need a witness for the accident, or they need to feel the engine to determine if it was hot (indicating it was driven recently).
Actual Physical Control cases lend themselves to a defense at trial because these are facts that jurors can sympathize with. An aggressive DUI lawyer can successfully argue these intricate defenses at trial. Due to the potential of these defenses winning at a trial, prosecutors often attempt to plea bargain down these types of cases. Plea bargains of this nature will usually include lessening the DUI charge to Reckless Driving. An experienced DUI lawyer will help determine whether this is a good result on your case.
Here at Keller, Melchiorre & Walsh, we have the experience handling DUIs to help you make the right decision with your DUI case. Our experience can lead to better plea negotiations or proceed to a defense at trial.