DUI Arrest Does Not Necessarily Mean a Conviction

Defense Wins in ‘Actual Physical Control’ DUI Trial

Fourteen months ago, in January 2021, my client was driving home when he began to feel tired. He reasoned it was not safe to drive and made a conscious decision to park his Chevy Silverado in the rear of closed businesses in a Mesa strip mall.



My client stopped his truck, shifted the transmission into park and fell asleep. But he did not know that this strip mall participates in Mesa’s trespassing enforcement program, so Mesa police routinely patrol the backside of these business properties.

Mesa police spotted the truck. Its lights shinning. Its engine idling so the truck’s interior could be warm on a winter’s evening. The officer approached my client. It took the officer about three minutes to awaken him. Once awake my client obeyed the officer’s order and got out of his truck.

The officer noted in his police report that allegedly the driver’s speech was slow and slurred, his eyes bloodshot and watery, his face flushed, his eyes jerking involuntarily gazing to the side, which is caused by exaggerated alcohol consumption. All indicating intoxication.

My client declined to take the suite of agility tests in the field sobriety process and refused to take the preliminary breath test.

My client told the officer that he had been driving, felt tired, and realized he should not be driving and that he had been parked behind the strip mall for about an hour. Usually it is better not to get into a discussion with a police officer because anything said will be used against the suspect. But in this case providing his reason for parking his truck off the beaten path aided in his defense.

He was subsequently arrested on suspicion of being in actual physical control of the truck while intoxicated. A later test showed my client’s blood-alcohol level was 0.15 percent, an extreme DUI level. The baseline DUI is 0.08 percent.


Arizona's Actual Physical Control Law
Actual physical control under Arizona Revised Statute §28-1381 means the defendant’s access to the vehicle must be either “present or imminent.” Several situations need to be considered to determine if actual physical control did or didn’t happen. These are:

• Was the vehicle’s engine running
   
• Where was the ignition key placed
   
• Where and in what position was the driver found
   
• Was the driver awake or asleep
   
• Were the headlights on or off
   
• Where was the vehicle stopped
   
• Did the driver voluntarily pull off the roadway
   
• What was time of day
   
• What were the weather conditions
   
• Was the air-conditioning or heater on
   
• Were the windows up or down
   
• An explanation of the circumstances as determined by the evidence
   

Beyond these situations, the Arizona Supreme Court has ruled that the totality of the evidence needs to be considered and that imminent control needs to present a real danger not a potential danger.
 
We Go To Trial In Municipal Court -- Twice

My client pleaded not guilty and the case went to trial. But the jury could not reach a unanimous verdict. These cases are tough. We had to do it all over again with another set of jurors.

I told the next jury, as I did in the first, in my closing remarks that the list of situations is not meant to be all-inclusive. I also said, “It is up to you to examine all the available evidence and weigh its credibility in determining whether the client actually posed a threat to the public by the exercise of present or imminent control over it while impaired.”


We won the case! The second trial ended with a not guilty verdict in February 2022, 13 months after the arrest, with his future unsettled during all that time.


 
Ramifications Of A Conviction
With my client’s BAC in the extreme DUI range, the punishments if he had not been exonerated could have been difficult at best. The law allows incarceration for a minimum of 30 days and a maximum of six months in Maricopa county jail. If an Ignition Interlock Device is installed at the driver’s expense, 21 of these days may be suspended.

My client would also have been eligible for home detention after serving 20 percent of the initial term of incarceration. Beyond that, fines and surcharges would have totaled $2,760.

His driver’s license could have been suspended for 30 days followed by a restricted license for traveling to work for 60 days.

The court could have ordered my client to undergo alcohol screening and classes, community service and be placed on probation for as long as five years.

 
Why Use Aaron M. Black Law for DUI Defense
If you, a loved one or a friend have been arrested for actual physical control or driving under the influence, your best course of action is to have legal representation promptly.

As this not guilty verdict shows, I believe that good people can make a misjudgment and find themselves in legal jeopardy. They deserve a seasoned defense attorney such as myself. That is why I work aggressively and tirelessly to defend my clients and achieve the best possible result by challenging the police report, testing procedures, equipment faults, the arresting officer’s performance record, and developing mitigating evidence.

My goal is always to win as I did in this case. If that is not possible, with your permission, I will negotiate with the prosecution to at least reduce the severity of the charge.

Unlike some big law firms, you will never be assigned to an assistant. You will always be communicating directly with me by phone, email, Zoom call or FaceTime, and text. That is my personalized service.

Begin your defense by calling 480-729-1683 at any time day or night, weekends or holidays, and I will respond promptly unless I am in court or at trial. Or use my online contact form.

I defend actual physical control and other DUI charges in justice, municipal, state and federal courts in and adjacent to Maricopa County.