Last Wednesday, the Arizona Supreme Court made it easier for prosecutors to convict intoxicated individuals who were not driving of driving under the influence of alcohol (DUI). The expanded policy was handed down in the context of a case involving Vincent Zaragoza who was arrested on April 29, 2006, for sitting a car with a blood alcohol content of .36. On that day, Zaragoza had gotten into an argument with a woman at an apartment complex. He went to his car in the parking lot of the complex, got in and—according to Zaragoza—put his key in the ignition briefly to lower the window and turn on the radio. Before anything could happen, a police officer ordered him out of the vehicle. The car’s engine had not been started, but Zaragoza was on his way to jail.
Under Arizona law, a DUI conviction requires “actual physical control” of a vehicle. A trial court interpreted this provision by instructing the jury to find Zaragoza guilty if he had “potential use” of a vehicle. The court of appeals overturned the conviction because the instruction appeared to present the opposite of the standard set by the law.
“Because the instruction could have been interpreted by the jurors as requiring them to find Zaragoza guilty based on control of his vehicle he might have hypothetically exercised but never did, that instruction was erroneous,” the appeals court ruled. “We believe the legislature intended to criminalize an impaired person’s control of a vehicle when the circumstances of such control — as actually physically exercised — demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion.”
The appellate court was following early court precedents that offered a clear safeguard to motorists who decided to pull well off the road, turn off the engine and sleep off the drinking without incurring a DUI. The state supreme court in 1995, however, decided it wanted to expand the number of convictions for DUI and created a new approach.
“The totality approach permits drunk drivers to be prosecuted under a much greater variety of situations — for example, even when the vehicle is off the road with the engine not running,” the court ruled in the 1995 Arizona v. Love case. “The drunk who turns off the key but remains behind the wheel is just as able to take command of the car and drive away, if so inclined, as the one who leaves the engine on. The former needs only an instant to start the vehicle, hardly a daunting task.”
In last week’s ruling, the supreme court unanimously insisted that “potential use” is not contrary to the definition of “actual control.” The justices concluded that as long as a jury finds that, even though an individual had not been driving, he “posed a threat” to the public by his potential or “imminent” control of a vehicle, he can be found guilty. The high court dismissed the appellate court’s idea that this approach could lead to absurd situations.
“The instruction does not raise the specter that any impaired person with access to a vehicle could be convicted for being in actual physical control of a vehicle,” the high court ruled. “The defendant’s intent is not an element of the strict liability offense of driving while intoxicated.”
The high court reversed the appeals court decision and affirmed that of the trial court while setting out a new jury instruction for courts to follow. A copy of the decision is available in a 40k PDF file at the source link below.
The newly approved Arizona DUI jury instruction:
In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to himself or others at the time alleged. Factors to be considered might include, but are not limited to:
1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.
If the engine was cold, then the driver was sitting in a fancy chair. Doesn’t “automobile” indicate that some kind of moving must have happened? hence the term “mobile”.
Also don’t you have to be on a public right-of-way? Isn’t an apartment complex parking lot private property?
Further, is an automobile sitting in an attached garage of my house under my “potential” control? So I can’t drink at my house?
Pretty sorry that a guy can’t even go to his car when drunk for fear of a DUI. Back in the day we used to do a lot of drinking around the car, never with any intention of driving anywhere. Keys in the ignition, radio blasting, just having a good time. I understand public safety, I don’t understand local Governments doing everything they can to screw the residents of their towns over. Maybe I’m just naive, but Government should work for us.
We shall abolish the orgasm. Our neurologists are at work upon it now. There will be no loyalty, except loyalty towards the Party. There will be no love, except the love of Big Brother. There will be no laughter, except the laugh of triumph over a defeated enemy. There will be no art, no literature, no science. When we are omnipotent there will be no need of science. There will be no distinction between beauty and ugliness. There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always—do not forget this Winston—always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face—forever.
Prosecuting people for what they have the “potential” to do amazes me.
How about arresting anyone who is sitting within 5 feet of a firearm? Afterall, they have the Potential to pick it up and shoot you!
Just another example of an out of control judiciary.
I have a gun. Sometimes I get angry with my wife. How long before these jerks decide that it’s within the purview of some cop to decide that there’s a potential homicide waiting to happen. They better arrest me before this can happen.
Shades of Minority Report. Except that instead of machines, we have a bunch of Barney Fife’s deciding who’s going to do what.
We have had that on the books for ages.With the keys in the ignition you have care and control while your ability is impaired by alcohol or drugs.
utter nonsense. Really, you have to just not care about the person who’s life you are temporarily ruining to a)write that ticket, and b)go out of your way to create precedent supporting it. I really hope one of those judges gets a bs .08 dwi and has their car impounded. Better yet, I hope it happens to one of their children.
One further term that needs clarifying. Driving. Am I “driving” my car in my locked garage with the ignition on? Note: “my garage” is private property.
this is considered normal outside of the US
there’s been a lot of cases of people getting drunk and sleeping in the back seat of their car
that is a DUI
if you have the keys in your close proximity, that is intent
in theory you could get done sleeping drunk in your own garage!
So how about keyless entry fobs? If I’m standing 100 yards from my car, drunk, and can’t find it but I start the engine, roll the windows down, and set off the panic alarm am a DUI?
What if I’m on the 30th floor of a building and the car is way below me or in another building? (google for keyless chin or somesuch and read all the situations where people have started or unlocked their car while testing this)
Sure I have the control over the car with that remote fob but in no way am I driving. I thought the D in DUI was driving?
Sitting in a seat in a non moving vehicle is not driving no matter what the state of the windows, lights, keys, etcetera.
Oh and with the new keyless ignition systems you get a dui for sitting in the seat no matter the intent because just being within x feet of the vehicle is the same as having the key in the ignition. Talk about overreaching laws…
Not sure this is news as it has been the policy of many states for a while.
I think the operating concept is “control” so having a keyless fob outside the vehicle would not qualify.
One would hope the policy officer would exercise some discretion here. 10 years ago, maybe. 20 years ago the cop would just take the keys.
There might be a new, minor wrinkle in application of the law in Arizona but this sort of thing is, indeed, old news. Acquaintances of mine have been arrested for this sort of thing in years past.
I personally know of two military cases where the GI went to his car from the NCO Club.
One was asleep in the back seat, key in his pocket, withthe radio on: Result DUI – end of career.
Second one got in his car (Jeep), sat in the drivers seat to “take a nap”. His supervisor (me) had his keys. He had no way of driving the vehicle. Result: DUI – unable to promote (mathmatically) for 4 years.
Wonderful system.
Issues of control aside, I can’t understand how the state would be able to apply DUI laws to private property. These laws are meant for public highways, waterways, etc., and they shouldn’t have jurisdiction in a parking lot. (Just imagine getting pulled over for speeding on a race track.)
What should really grate here is the willingness of the police officer to write this ticket in the first place. They know full well what the consequences of that action will be. That really does make any cop writing that ticket an asshole.
There’s really nothing to do except lobby for the adoption of specific language to excempt standing cars. You’ll surely be spending money in opposition to MADD and the IIHS so…good luck.
cbroeker : Just another example of an out of control judiciary.
Actually not. The Judiciary merely interprets the law, as written by the Legislative branch. The Legislators are firmly in control of special interests, in this case the twin-headed dog of MADD and Law Enforcement. The latter wants a return of Prohibition, the former wants more reason to expand their power. Legislators don’t want to be tarred with a “soft on crime” “he didn’t help THE CHILDREN” attack ads when election time comes. So they write these bizarro laws. The judges merely play the cards that are dealt them.
The check on the Judiciary at the District & Superior layers is supposed to be the Jury, but only people who are too stupid to get out of Jury duty ever serve on juries.
–chuck
This infuriates me to a level I can’t express. I thought to be convicted of a crime, it has be be “without a reasonable doubt”.
imagine this
you are a cop
you see a guy asleep in the back seat of his car
you find keys on his person
you believe his story that he’s only ‘sleeping it off’ and let him go
15 mins later he drives and kills a family of 4 in a minivan
now you tell me how likely you are to keep your job and perhaps even on a civil suit?
Revenue, Revenue, Revenue! How wonderful it is to bend the rules to make cash on misfortune, or the chance someone might F* up.
As for the above senario, take his keys, have him call a friend, relative, cab, etc. Or give the guy a ride home if its not to far. You don’t have to arrest. There are many more “helpful” options for someone using better judgement and not driving the car. But then nobody would make any $$$.
When will we nail the real problem to the wall – Cellphone use while driving.
cops, politicans are interest in arrests and fines and the KPI thing
helping people doesn’t result in any revenue and browny points at the end of the month
it’s in the interests of everyone to have a negative environment… more speeding drivers, more street racing, more DUI simply because a repressive society helps their agenda be it economic or for job security
Tony, I understand your point, but was a crime being committed? Let’s take your point and run with it–what if a cop saw a drunk person getting a suitcase from the back seat of his/her car? The person is in the car and has keys, so the cop should arrest the person using your standards of possibility? What if the drunk is retrieving something from the trunk? What if the person is, as the Boss sang, “barefoot . . . sitting on the hood of a Dodge, drinking warm beer in the soft summer rain”? If the windows are down and the keys are in the ignition so the radio can play, should that person be arrested for DUI in fear that later the drinker might go for a ride?
I hate drunk driving, but I’d like a crime to be committed before people are arrested, not just the potential for a crime to be committed.
One more step towards Amerika.
So now when you’ve committed no crime you can be charged and prosecuted because you might?
What’s next– if I’m drunk on the sofa with keys in my pocket I’m now considered a potential threat to drive and should be arrested and made a criminal?
Can anyone say “The Gulag Archipelago”?
Vehicle operation comes under total control of the government, there are few legal protections for drivers. This is wrong for several reasons, as citizens we should not be expected to surrender civil rights just by operating a machine that transports us.
No one wants to take a case like this to the SCOTUS since everyone supports getting drunks off the road (just remember all the gory movies, commercials and ads) so you have to watch your ass.
Don’t go out to bars, drink at someone else’s house, or retrieve anything from your car while intoxicated unless the car is in a locked garage not visible from the street.
DUIs are so expensive. They also can cost you your job, security clearance, visitation with children, you name it.
It’s gone from making the roads safer to fleecing the public. Insurance companies make up lost revenue on the DUI convictions. If several people are not arrested for DUI every week then the cops are not doing a good enough job (that is the impression)
A common sense rule should be engine running, that’s it, equals DUI. if a cop finds a sleeping drunk he can either take the keys, tow the vehicle, or have him call a cab. But taking it to the level of charging him with such a crime is unconstitutional and does look like Minority Report. Like most things this will be expanded on.
Drive a fast car? Here is a speeding ticket for when you decided to go that fast.
I really hope one of those judges gets a bs .08 dwi and has their car impounded
Not gonna happen. Anymore than Henry VIII might get imprisoned for adultery.
But then you get the government you vote for which is a better choice than Henry’s commoners had.
The justices concluded that as long as a jury finds that, even though an individual had not been driving, he “posed a threat” to the public by his potential or “imminent” control of a vehicle, he can be found guilty.
It may bug people, but it makes sense. This is the DUI equivalent of standing in front of a jewelery store window with a brick in your raised hand. Sure, you might just be admiring a ring for your wife-to-be and carrying home a replacement for a cracked bit of wall, but you’re going to have to prove it.
Note that this is a jury trial, and that the jury is being instructed to consider all the evidence as per the points below. This defendant didn’t have a grounds to disprove he wasn’t about to drive away, but I doubt a jury is going to convict someone sleeping in the back of the car unless the defendant’s lawyer is really, really bad.
ruckover – You’re preaching to the choir, brother…:)
If you replace the first ‘r’ in your forum name with the sixth letter in the alphabet, that would be a perfect description of what happened to Vincent Zaragosa…. (pardon the pun)…:)
please don’t think i am for this kind of thing
god knows i’ve spent many a night asleep in my mum’s car in the parking lot of a club or bar or red light district
obviously not this century!
but you must get into the mind of the police officer, his superior, the politicians and the inland revenue department to understand where their motivation lies
the motorist is an easy mark – easy to get some dollars off
more than one of my friends has been killed by a DUI driver or have killed themselves drunk
however were i am you can see where they are going – speeding and other ‘softer’ crimes like street racing, burnouts, street gatherings have higher monetary penalties than DUI crimes
DUI isn’t on the minds of the public as much as the ‘enthusiast’ type ‘crimes’ but it too is an easy mark
If you are convicted of a DUI it is a criminal offense. You cannot get work in the public sector, around minors or military or many financial institutions.
Sleeping in a car is not a criminal offense.
Reason magazine has been all over this crap for quite a while. For example:
DWI for Walking a Bicycle
http://www.reason.com/blog/show/126435.html
Top DWI Cop Busted for False Arrests
http://www.reason.com/blog/show/120843.html
Washington State’s DWI Follies
http://www.reason.com/blog/show/121849.html
Seems to be no different than arresting me for attempted murder because I have weapons in my house and under my control that could kill somebody including saws, knives, and various guns. Where does this lunacy end? I abhor drunk drivers as much as the next guy (they’ve taken a toll on my family), but convicting somebody of drunk driving because they were sitting in a stationary vehicle with the engine off while drunk is incomprehensible to me. It sounds like the Arizona Supreme Court has an agenda that has nothing to do with common sense application of the law. When did it become acceptable to arrest somebody because they had the means to commit a criminal act?
psarhjinian : Note that this is a jury trial, and that the jury is being instructed to consider all the evidence as per the points below. This defendant didn’t have a grounds to disprove he wasn’t about to drive away, but I doubt a jury is going to convict someone sleeping in the back of the car unless the defendant’s lawyer is really, really bad.
In Ontario, if you blow a warning (.05) you automatically get a 3 day suspension, no court, no hearing, no jury. .05 is not considered intoxicated, as that is .08. As well as being able to take your car at the side of the road for speeding (without a jury) they can also suspend your license for 3 days with no appeal.
http://www.mto.gov.on.ca/english/safety/impaired/fact-sheet.shtml#adls
“These roadside licence suspensions cannot be appealed. Suspensions will be recorded on the driver’s record. For up to five years, these roadside suspensions will be considered when determining consequences for subsequent infractions.”
In Ontario, if you blow a warning (.05) you automatically get a 3 day suspension, no court, no hearing, no jury.
Then don’t drink and drive.
I live in Ontario and have been pulled over by RIDE checks fairly frequently and haven’t had my license pulled. And yes, I do drink, but I stop well before it might be detectable.
At 0.05 you’re still looking at judgment impairment and, in many people, mild reflex dulling. Just because you’re not at 0.08 and thusly solidly intoxicated, doesn’t mean you’re not a danger. I don’t care if you think “you can handle it” it 0.05, not everyone can, and it’s best you get off the road and learn a lesson. From the same page you linked to:
Drivers with a BAC above 0.05 but below the legal limit are 7.2 times more likely to be in a fatal collision than drivers with a zero BAC.
Perhaps instead of railing against the government, people ought to exercise a little responsibility and, oh, I don’t know, not break the law?
As well as being able to take your car at the side of the road for speeding (without a jury) they can also suspend your license for 3 days with no appeal.
I’d like to point out that they only take your car if you’re doing 50km/h over the limit. There are very few reasons for doing that on a public road.
psarhjinian :
At 0.05 you’re still looking at judgment impairment and, in many people, mild reflex dulling.
Ok. Well, at the AGE of 85, you’re looking at judgment impairment and, in many people, mild reflex dulling. And NO politician would dare go there, even if saves a million children.
After a 17 hour shift at a manufacturing plant doing physical labor, most people would be equally impaired.
The 0.05 limit is a political gimmick. It’s a horrible use of enforcement resources. Removing or jailing the worst drunks & non-licensed drivers would do far more for road safety, but that would cost money.
psarhjinian : It may bug people, but it makes sense.
Not to me. With your logic, we should all go to jail for the rest of our lives since we are all only a step or two away from committing serious crimes. They could streamline the process by eliminating any chance for a trial, just as you would prefer.
The 0.05 limit is a political gimmick. It’s a horrible use of enforcement resources. Removing or jailing the worst drunks & non-licensed drivers would do far more for road safety, but that would cost money.
Well, folks, we have a winner. This is one of those points that is so politically inappropriate as to anger a lot of people, yet as a matter of statistical reality and pragmatism, it’s totally accurate.
DUI accidents are generally not caused by the casual drinker who has a beer with his burger, but by habitual offender alcoholics who are well above the legal limit, including many who have long arrest records and who do not have drivers licenses.
If resources could be focused to target the long-term or permanent removal of this small group of offenders from the road, instead of scattering them around as we do now, we might actually accomplish something. Instead, we lavish resources to prosecute minor offenders, and the DUI fatality rates don’t budge. If the policies don’t work, they need to be changed, and these low- to no-tolerance policies aren’t working.
This kind of thing is the law in more jurisdictions than many people are aware of. In Washington it’s called ‘Physical Control’, and it carries the same criminal and civil penalties as a DUI. ‘Actual physical control’ is defined pretty damn broadly, and DOES NOT require driving. Sometimes it doesn’t even require that the car be operable!
This is a real shocker to many of my clients, since all those DUI warning ads never tell you “Don’t Drink And Sleep In Your Car!”
RCW 46.61.504
Physical control of vehicle under the influence.
(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:
(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 [etc]
(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
Why does Arizona keep popping up in these stories? Is it because a lot of libertarians live there and raise the red flags? Or are they worse than other places?
“The high court dismissed the appellate court’s idea that this approach could lead to absurd situations.”
Yeah well we’ve heard that about other laws, but there’s always some crazy prosecutor and brain-dead jurors who will push laws to ridiculous extremes. Will someone asleep in their bed, after a few drinks, with their keys in their pocket get charged with DUI? There’s a pretty good chance.
All these laws are all over the place. I have seen and been through it all. I don’t wish to expand on what but here it goes.
I do not wish to be a judge lawyer or officer. The DUI laws are a hard thing to deal with unless you REMOVE one of them (not likely).
The law SHOULD NOT be designed to play the “what if” game period! The people who drink and drive and those who get charged for it suffer greatly.
I understand the laws intent. Say it with me now “PROACTIVE”. Not easy guessing in any situation. The only solution I can come up with is the vehical must be in motion. This is not hard to define or understand or “GUESS”.
This charge is a BIG DEAL therefore the officers MUST do there job. Situation:
Said suspect has the ignition keys for an auto. Suspect enters auto (moving windows, running radio, heater, A/C ect… I don’t care). If the officer beleaves that said suspect will drive away… wait for it. YOU GUESSED it! WAIT FOR IT! You can still be proactive by pulling said suspect over the second he puts his auto in drive to move the vehical ANY DISTANCE. This way we can all still call it “Drinking and Driving”. These new proactive laws need a diffrent name with a diffrent punishment if we want them enforced so badly.
Sorry to see that this would require more work.
Tom Petty sang:
The waiting is the hardest part
dui is an offense and the accused showld be easily caught no one can play with the lifes of others still one should seek legal help at once from DUI Lawyers