It is likely that you are aware that the “D” in DUI stands for “driving.” Indeed, when we consider alcohol and vehicles, typical word association always places the driver behind the wheel of a car in motion: “drunk driving,” “Mothers Against Drunk Driving,” “friends don’t let friends drive drunk,” and so on are all manifestations of the assumption that you need to be driving the vehicle while intoxicated in order for DUI to apply. But is this always the case?
Consider a scenario in which you have gone to a bar at night to have a few drinks. After tipping back a few, you decide that it is time to go home. But there is a problem: although alcohol affects judgment, even you strongly suspect that when you get into your car your physical state from the alcohol consumption means that you cannot safely drive it. So, being a responsible person, you elect not to press your luck or to jeopardize anyone else and you choose instead to “sleep it off” in your car. It is hard to do that with the steering wheel sticking out at you, so you move over to the passenger seat and doze off.
You are rudely awakened when a police officer appears and talks with you, perhaps even having you exit the vehicle and perform some field sobriety tests, after which he says that you are being charged with DUI.
“How can this be?” You ask yourself. “I wasn’t in the driver seat, the car wasn’t moving, the engine was even off.” The answer that you are likely to receive is summed up in three words: “Actual physical control.”
The Oklahoma DUI statute states at its very beginning, “It is unlawful and punishable as provided in this section for any person to drive, operate, or be an actual physical control of a motor vehicle within this state who…” – and then follows that opening with variations of being intoxicated. “Actual physical control” of a vehicle does not always mean the same thing as operating it; the statute makes this clear by referring to operation separately from actual physical control. Instead, being in control of the vehicle can simply refer to something as simple as demonstrating that you have property rights over it or are otherwise the person responsible for it.
So when you read the letter of the law, you do not need to be driving your car to still be accused of drunk driving. As long as you meet the other requirements of the DUI statute, your exercise of dominion over the car by itself is sufficient. Or at least, that is what law enforcement and prosecutors would like you to believe.
The actual application of the law, however, is not always so black and white. In fact, this firm has successfully defended clients faced with actual physical control-based DUI charges and secured “not guilty” jury verdicts for them. There are a number of ways in which this can be accomplished, including challenging all of the elements of the prosecution’s case or pointing to unique factual circumstances that operated in the client’s favor. The point is, just because someone points to the words “actual physical control” to accuse you of drunk driving even when you are not driving, you should not simply take his or her word for it. There may be effective defenses that you may not be aware of that can secure an acquittal for you or even result in the charges being dropped.