Acutal Physical Control Utah DUI Attorney

Salt Lake City DUI Defense Lawyer

Utah DUI Case Law

Actual Physical Control Case Law

An Actual Physical Control case differs from a Driving offense for DUI because the driver’s vehicles may not actually be in motion. In other words, in Utah, the vehicle does not have to be moving in order for the driver to be cited for DUI. So, if a person is asleep in his car, which his keys in his pocket, he can still get nailed for a DUI. Talk about losing on a technicality – after all, the "criminal" was trying to be responsible by not driving!

All the driver needs to be is in control of the vehicle. State v. Bugger, 483 P.2d 442 (Utah, 1971). The Utah Supreme Court defined the term and explain the standard, stating:

That part of the statute which states: "be in actual physical control of any vehicle" has been before the courts of other jurisdictions which have statutes with similar wordings. The word "actual" has been defined as meaning "existing in act or reality;* * * in action or existence at the time being; present;* * *." The word "physical" is defined as "bodily," and "control" is defined as "to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from actions; to curb." The term in "actual physical control" in its ordinary sense means "existing" or "present bodily restraint, directing influence, domination or regulation." Id. at 443.

Later in Garcia v. Schwendiman, 645 P.2d 651, 654 (Utah 1982) the Utah Supreme Court added:

[A]s a matter of public policy and statutory construction, we believe that the "actual physical control" language of Utah’s implied consent statute should be read as intending to prevent intoxicated drivers from entering their vehicles except as passengers or passive occupants . . . .

And, in Richfield City v. Walker, 790 P.2d 87, 91 (Utah Ct. App. 1990), the Court of Appeals included in the definition of actual physical control, a totality of the circumstances necessity and laid out a non-exclusive list of factors to examine in determine whether a defendant was in actual physical control of a vehicle:

• Relevant factors for making this determination include, but are not limited to the following:
• (1) whether defendant was asleep or awake when discovered;
• (2) the position of the automobile;
• (3) whether the automobile’s motor was running;
• (4) whether defendant was positioned in the driver’s seat of the vehicle;
• (5) whether defendant was the vehicle’s sole occupant;
• (6) whether defendant had possession of the ignition key;
• (7) defendant’s apparent ability to start and move the vehicle;
• (8) how the car got to where it was found; and
• (9) whether defendant drove it there.

Finally, the Supreme Court discussed the relevance of a defendant’s intent, or lack thereof, to actually drive a vehicle. Instead, the court will focus on the potentiality of impaired driving in an effort to promote highway safety. State v. Barnhart, 850 P.2d 473, 479 (Utah Ct. App. 1993).