A case that addressed that question, State v. Larriva, cited out-of-state authority for the proposition that “the inoperability of the vehicle does not preclude a finding of actual physical control,” later concluding “that the operability of the vehicle is only tangentially relevant to the determination of actual physical control.” In Larriva, the defendant was stuck on a curb and couldn’t move his car.
However, Larriva was later questioned in State v. Dawley, where the court stated in a footnote that “the facts on which we based our decision in Larriva would support a conviction on a theory of driving as shown by circumstantial evidence, as suggested by the special concurrence in that case, not on a theory of actual physical control.” Dawley was dealing with jury instructions, and the court thought the jury should have been instructed that the defendant was in “‘actual physical control’ of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others.”
Although Dawley seems to prevent someone from ever getting a DUI in an inoperable car, I can imagine some prosecutor arguing that the court used the word “potential” before the word “use” in the jury instruction to avoid that result. In a broken-down or stuck vehicle, drunken “use” hardly presents a real danger to anyone. But if you consider that the vehicle might start or break free, couldn’t “potential use” present a real danger? Could the likelihood of the car eventually moving become a factor to consider? How do you reconcile that with the footnote in Dawley?