Chandler Criminal Defense

You may remember an old post about whether you can get a DUI in a car that doesn’t work. The issue came down to “actual physical control.” That’s because you don’t have to drive to get a DUI in Arizona; you just have to have actual physical control of a vehicle.

When Arizona’s Court of Appeals, Division Two came out with a related opinion in State v. Zaragoza, I put up another post about actual control. I was pretty negative about whether the opinion would make a difference. It turns out I was right to be negative, but for the wrong reasons. This summer, the Supreme Court of Arizona vacated the opinion of the Court of Appeals.

In Zaragoza, the defendant staggered to his car and got in. An officer pulled up behind him, shined his flashlight inside, and saw him in the driver’s seat with one hand on the steering wheel and the other putting the key into the ignition. Although he testified he just wanted to sleep in the car and planned to start the ignition to roll down the window and turn on the radio, the jury convicted him of felony DUI. The jury was instructed that “[t]he defendant is 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 at the time alleged.” They were also given several factors to consider when deciding whether or not he controlled the vehicle.

The Court of Appeals reversed the trial court because they thought the phrase “potential use” misled the jury. The court was worried the jury found the defendant guilty based on hypothetical control. I think that’s reasonable, and in that respect, Zaragoza was one of the better opinions I’ve read. I was sad to see it overruled, but I wasn’t surprised.

The Supreme Court thought the Court of Appeals had it all wrong. They claimed “a conviction could not be premised on speculative potential use” and said “[t]he 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.” Apparently, the words “presented a real danger to himself or others” made everything okay.

Obviously, I disagree. Saying “presented a real danger to himself or others at the time alleged” does nothing to avoid convictions based on speculative potential use. I interpret those words as only ensuring your speculative potential use is actually dangerous. Because a vehicle is involved, they are pointless. Of course your hypothetical use is dangerous. I imagine quite a few jurors will interpret it like I do. The nuances of those magic words the Supreme Court trusts so much will probably be lost on quite a few jurors too.

After making the conclusory statement that the instruction simply cannot be interpreted the way the Court of Appeals and I interpret it (an amazing claim, seeing as how we did in fact interpret it that way), they go on to claim it won’t result in any impaired person with access to a vehicle being convicted of DUI. That’s equally silly. Isn’t that the point of all this?

First, we were only worried about actual “driving” under the influence. Then, we got tough on those rascally drunk drivers who don’t drive by punishing drunk people with actual control of a vehicle. At that time, we thought we should allow drivers who realized they were impaired to pull completely off the highway, turn the off the car, and sleep without fear of being arrested for DUI. Unsurprisingly, we got tough again. We decided to just have the jury look at the totality of the circumstances to determine if there was actual physical control.

What’s a jury going to do when they hear about drinking and a motor vehicle? Seriously. This is going to be their reasoning: “drinking scary, car scary, drinking plus car very scary.” In Zaragoza, the Supreme Court even cites an earlier case acknowledging that the “totality approach” allows the state to prosecute drunk drivers “under a much greater variety of situations – for example, even when the vehicle is off the road with the engine not running.” Great. No matter how hard the courts try to convince themselves it isn’t true, the goal of all this is to ensure that every impaired person with access to a vehicle gets convicted of DUI.

The Supreme Court doesn’t even want a person’s purpose in controlling the vehicle to matter. The Court of Appeals thought the legislature intended to criminalize control of a vehicle when the circumstances “as actually physically exercised – demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion,” but the Supreme Court didn’t like that because it thought the facts determine whether a defendant exercises physical control of a vehicle. The opinion literally says an instruction telling a jury to consider the defendant’s purpose incorrectly states the law. I guess they’re fine with convicting people of DUI when they had no intention of driving.

Here’s the bottom line: there is nothing you can do to avoid getting a DUI. The goal is prohibition, not safety. Not driving won’t help you. Not drinking and not doing drugs may not even help you. While a DUI used to require the driver be impaired to the slightest degree, that doesn’t even matter anymore. You can get a DUI simply because of the content of your blood, regardless of whether or not you’re impaired. I’ve posted before about that too. Doesn’t anyone think it’s pretty ridiculous that someone can get convicted of driving under the influence for neither driving nor being under the influence?

The only good thing about Zaragoza is that the Supreme Court provides a new jury instruction that’s a little better than what we had before. Here it is: “[i]n 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] [herself] or others at the time alleged.” Hopefully, now it’ll be a lot harder to get a DUI in a car that doesn’t work.

It’s sad when something so little in the midst of so much unfairness is the only glimmer of hope I get from our Supreme Court.