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CAN I GET A DUI WHEN THE KEYS WERE NOT EVEN IN THE IGNITION? WHAT IS ACTUAL PHYSICAL CONTROL?

What is Actual Physical Control for DUI law purposes?CAN I GET A DUI IN UTAH WHEN THE KEYS ARE NOT EVEN IN THE IGNITION?

Utah DUI laws are written broadly, not narrow to effective public safety concerns about drunk driving.  The DUI laws found in Utah Code 41-6a-501 et seq outline what being in actual physical control means.   Being in actual physical control of a motor vehicle while drunk is a required element the government must prove against you.

ACTUAL PHYSICAL CONTROL–NEW LAW IN 05/2021.

In May 2021 the Utah Legislature added the following code provision at Utah Code 41-6a-501(a)

“Actual physical control” is determined by a consideration of the totality of the circumstances, but does not include a circumstance in which:

(i)            the person is asleep inside the vehicle;

(ii)           the person is not in the driver’s seat of the vehicle;

(iii)          the engine of the vehicle is not running;

(iv)         the vehicle is lawfully parked; and

(v)          under the facts presented, it is evident that the person did not drive the vehicle to the location while under the influence of alcohol, a drug, or the combined influence of alcohol and any drug.DUI with Keys NOT in Ignition

Prior to May 2021 there was no exclusionary language about being asleep or in the passenger seat and you could and often did get convicted of a DUI under those circumstances.

“Totality of the Circumstances” Rule for Actual Physical Control.

The jury or the judge if you chose a bench trial decides who is in actual physical control.   The fact finder decides if you were drunk and if you were in actual physical control based on the totality of the circumstances.  No one fact is controlling or conclusively determines if you were drunk behind the wheel.

A jury could convict you even if the police found you asleep in the vehicle if the jury concluded under the totality of circumstances that you drove there drunk.

Example:    Camping and Drinking. 

Utah DUI Defense AttorneyYour truck is parked up Provo Canyon.  You are sitting around the campfire drinking and are clearly drunk.   While camping you always leave the keys in the ignition so they don’t get lost.  The Utah County Sheriff’s Deputy pulls into your camp site at the exact same time you are getting more beer out of the front of the truck.

You are arrested for DUI as the keys were in the ignition and you are opening the truck door and you are drunk.

It will be up to the jury to decide if you were just camping or about to drive off in the truck and thus in actual physical control.   The jury will hear all the evidence and based on the totality of the circumstances decide if you were in actual physical control of the truck.

Example:  One Car Rollover.

You are involved in a one car rollover up Spanish Fork Canyon.  You are found walking down the canyon by the Utah County Sheriff’s Deputy.  You are found drunk.  The Utah County Deputy puts one and two together and charges you with DUI.  Even though you were not found drunk behind the wheel.

The jury will ultimately decide based on the totality of the circumstances if you were drunk driving or just walking to help after the rollover.

DUI DEFENSE ACTUAL PHYSICAL CONTROL

As you can see, an effective Utah DUI attorney can really make the difference in DUI cases involving actual physical control.  Choosing an experienced DUI trial lawyer who feels comfortable in a courtroom and has the necessary jury trial experience is critical.

Actual physical control, or “Siting DUI” cases always have a decent defense issue to discuss with the jury.

CALL/TXT UTAH DUI ATTORNEY JAKE GUNTER (801) 373-6345.  LET HIS NEARLY 20 YEARS’ EXPERIENCE TRYING CASES TO JURIES HELP YOU.

Is the lawyer you are about to call have 20 plus jury trials? Experience matters in criminal defense. Contact Jake today!

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