In Arizona it is possible to be charged with a DUI even if you are not actually driving. The Arizona Supreme Court has said that every case must be looked at a case by case basis to determine if someone was in actual physical control of a car. The following factors go to the trier of fact, which can be a jury or a judge. I wanted to give a little more insight into each of the factors. The following list is not an exhaustive list but some factors the Supreme Court pointed out.


  1. Whether the vehicle was running or whether the ignition was on.
    1. If the engine of the car is turned on it is more likely that the person had either driven or was about to drive. If the engine is turned off it is more likely that the person has been parked for a while meaning they were not planning on driving yet or had not driven for some time.
  2. Where the driver was found, and in what position.
    1. If a person is found in the backseat of the car it would be reasonable to assume they had not been driving recently and were not about to drive. The same logic can be applied to a person who is sitting in the passenger side of the car. If a person is in the driver position but their seat is reclined all the way back it may indicate that they reclined the seat to take a nap and were not planning to drive for some time as they would have to adjust the seat back to the normal position before driving.
  3. Where the keys were located.
    1. Were the keys in the ignition or were they out of the ignition? Keys in the ignition would indicate that the person may have recently drove or were about to drive. It is obvious that a car can’t be driven without the keys being in the ignition. An interesting wrinkle in this factor is that many new cars don’t require the keys to actually be in the ignition.
  4. The weather conditions and time of day.
    1. If someone is asleep in their car in the middle of the night can be a different situation if someone is asleep in their car in the middle of the day.
  5. Whether the driver voluntarily pulled over.
    1. If a person pulls over because they are starting to feel the alcohol in their system is a very different scenario then a person stopping their car on the shoulder and blacking out.
  6. Whether the driver was awake or asleep.
    1. If a person is sleeping in their car they are less likely to about drive as they obviously have to wake up first.
  7. Whether the windows were up or down.
  8. If the heater or air conditioner was on.
    1. An interesting issue that comes up with this factor in Arizona is that often times people will leave their engine running in their car if they are asleep if it is hot out. Arizona summer temperatures are very extreme so it would make sense that an engine is running so that the air conditioning will be cold.
  9. Where the vehicle was stopped.
    1. This is often one of the most important factors in determining if a person is likely to be found guilty in APC DUI case. If a person is sitting in their car in the middle of an intersection they are very likely to be found guilty. If a person is parked in a parking spot this is a very different situation.
  10. Whether the headlights were on.


If you or a loved one has been charged with a DUI in Arizona it is important you find a defense attorney that not only understands Arizona’s very complex DUI laws but also has a lot of experience in defending DUI cases in Arizona. APC cases can be very complex and you want a lawyer that has dealt with a high number of APC cases. Your freedom may depend on the lawyer that you hire.