» Entries tagged with "actual control"

DUI, What Should Be a Lesser Included Offense, and a Common Trial Defense

I previously wrote about the fact that, in Arizona, you do not have to be driving to get a DUI. I’ve also written quite a few times in the past about lesser-included offenses and Arizona courts’ unwillingness to give juries the option of finding defendants guilty of less serious but potentially more appropriate offenses at trial. A fairly old opinion from the Court of Appeals of Arizona, Division One, combines those two things in a way that might be pretty amusing if it weren’t so scary. In the opinion, the court said that aggravated DUI, which means DUI with a suspended license, does not contain the lesser offense of driving on a suspended license. The court’s reasoning was that aggravated DUI does not require proof of actual driving … Read entire article »

Filed under: DUI

Actual Control (Again)

Recently, I was surprised when Division Two looked at an issue very close to (if not the same as) something I previously discussed in a post. The issue in State v. Zaragoza was “actual control,” and most of the commentary I’ve read seems to claim that the opinion narrows the term significantly. Here it is. Although I have no doubt that it’s a step in the right direction and may well assist me in future motions, I am skeptical about how positive an effect the opinion is likely to have. Like any appellate opinion, it can be narrowed by its facts. The time line isn’t entirely clear to me, but I think the officer was on top of things as soon as the defendant got in the … Read entire article »

Filed under: Arizona Cases, DUI

Can you get a DUI in a car that doesn't work?

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 … Read entire article »

Filed under: Arizona Cases, DUI

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