The short answer is “yes,” but there are a number things you need to do to fully protect yourself in this situation.
We are seeing more and more DUIs in Arizona prosecuted where an individual simply pulls off to the side of the road and falls asleep in their vehicle or never even drives their vehicle and simply goes to sleep in their car.
The bad news is, even though you’ve tried to do the right thing by pulling off the roadway, there is still a high likelihood that you will be contacted by law enforcement – if for nothing more than for a “welfare check” on an individual sleeping (or having a medical emergency) in a vehicle.
The good news is that there is a legal theory in Arizona that protects people from convictions in these situations, but it is oftentimes a difficult path to travel down without an experienced lawyer.
As you likely know, in Arizona, you don’t actually have to be driving your vehicle to be prosecuted for (or convicted of) a DUI. Indeed, in Arizona, if you have consumed alcohol and get behind the wheel, just being in “Actual Physical Control” of a motor vehicle can be enough to be convicted of DUI.
But, “Actual Physical Control” is a nebulous term that has spawned a number of legal decisions that have tried to define it for our trial courts. Even the most recent case lists more than 13 different variables for determining what actually constitutes “Actual Physical Control” for the purposes of our DUI laws.
I have often made the practical argument that a person who voluntarily takes themselves off the roadway and out of a dangerous situation should not be treated the same as someone who knows that they’ve had too much to drink, but just tries to “make it home.” The ability to raise and effectively negotiate this position, however, is one that certainly should be handled by an experienced criminal defense attorney.
Back to the good news: It is currently the law in Arizona that “[t]he law does not forbid an individual from using a vehicle as stationary shelter when there is no actual threat posed to the public by the exercise of present or imminent control over it while impaired.” State v. Tarr, 331 P.3d 423 (2014). “Actual Physical Control” cannot be based on speculative potential use, but rather requires proof that the individual presented a real danger to herself or others.
So, if you find yourself in this unfortunate situation, I have a few words of advice:
These tips won’t assure that you won’t have contact with law enforcement, but it will create a more defensible case particularly in light of the fact that you were trying to do the right thing by getting yourself off the roadway when you shouldn’t have been driving in the first place.
If you or a loved one find yourself in this position, it is vital that you consult an experienced criminal defense attorney to help you through the situation. A Gallagher & Kennedy criminal law attorney can be reached, day or night, at (602) 510-9999 for a consultation.
“After interviewing several recommended attorneys, I chose Woody Thompson without hesitation. From start to finish, he provided me with honesty, dedication and realistic details about my case. The entire firm was extremely thorough with communication and follow-up supporting me every step of the way. Woody never gave up by tackling every angle of my case for the very best outcome possible. ”