DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:

So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.

The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…

Towards the end of the post, Gideon concludes:

The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).

Another site that comes up? New lawyer darling Avvo.

So yeah. Douchebag.

Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.

The harsh penalties for an Arizona extreme DUI conviction have been well chronicled in this blog.  However, what happens when we apply these penalties to people who were only visiting Arizona and charged with DUI?

One could take the view: who cares?  When people come to "our state" and commit crimes, they deserve whatever they get.  On the other hand, you could look at what I believe are the unintended effects of these penalties on visitors to Arizona.  Moreover, these unintended consequences really demonstrate the disconnect between what should be the goals of the law (deterrence) and the means (more jail) used to carry out those goals.

Here are some basic facts.  First, for obvious reasons, we get a lot of visitors to Arizona.  Second, we have DUI laws and enforcement that are much stricter than in most states. And third, despite the promise that increased penalties (i.e. jail time) would prevent DUI offenses, it appears law enforcement agencies are still arresting the same amount (or more) of people for DUI.  If there is a reader of this post who has some statistic showing my third premise is incorrect, please post it in the comments and I will publish it.  However, I am doubtful that anyone will find such a statistic.  In addition, I contend that the increased DUI penalties fail to deter both in-state and out-of-state visitors.  Thus, visitors to Arizona, lots of visitors to Arizona, are getting charged with DUI offenses.

Let's add the penalties for an Arizona extreme DUI conviction to the equation.  For a first time extreme DUI offense (i.e. blood alcohol result of .150 and below a .200), even if the judge believes you are the best person on the planet, the minimum sentence is 30 days jail.  Combine this with certain prosecuting agencies that offer a plea agreement of 30 days jail (or close to it), and out-of-state visitors have a real problem.

For the Arizona resident, 30 days jail is a tremendous burden.  However, at least with work release, you should be able to keep your employment.  If you live in California and are sentenced to 30 days jail in Arizona, your job (your career) is now in jeopardy.  How many employers are going to say "sure, take thirty days off to go serve a jail term in Scottsdale, no problem?"  This misdemeanor offense can have penalties that could ruin someones livelihood.

Here are the solutions we have found in the past.  An out-of-state visitor can request an order to do their jail in their home state.  That request is almost always granted.  However, the judge will tell you it is "your" responsibility to find a jail in your home state that will comply with the incarceration order.  In my experience, the average person can find a jail that will take them for a day or two, but 30 days - good luck!  To solve this problem, we have had to employ former law enforcement officers and had them assist with getting our clients accepted into the facility.  Even using this method, it is still difficult.  Moreover, how many people can afford this service?

The other option is going to trial.  If you can convince the jury that your blood alcohol concentration was merely over .08 but below .150, then the minimum jail is reduced to one (1) day.

In sum, Arizona has set up a terrible dilemma for out-of-state visitors charged with extreme DUI.  My experience is that prosecuting agencies have little sympathy for the unique problems they face.  The reality is law enforcement takes the attitude - "its your problem - deal with it."  Dealing with it may be a lot harder for out-of-state visitors.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact Koplow & Patane Online or by phone at (602) 494-3444.