Most people understand that Utah law prohibits driving while under the influence of alcohol or drugs. What is less obvious is that Utah's DUI law does not always require the State to prove that the accused was actually driving.
A person may also be prosecuted for DUI when the State claims that the person was in “actual physical control” of a motor vehicle.
That distinction can become extremely important when police find an intoxicated person sitting—or sometimes sleeping—in a parked vehicle.
A recent Utah Court of Appeals case, State v. Wahlstrom, 2026 UT App 143, illustrates how actual physical control can become the central issue in a Utah DUI prosecution.
What Is “Actual Physical Control” Under Utah DUI Law?
Utah Code § 41-6a-502 prohibits a person from operating or being in actual physical control of a vehicle while meeting the statutory requirements for DUI.
Utah Code § 41-6a-501 defines actual physical control under a totality-of-the-circumstances standard.
The statute also creates an important exclusion. Actual physical control does not include circumstances in which:
- the person is asleep inside the vehicle;
- the person is not in the driver's seat;
- the engine is not running;
- the vehicle is lawfully parked; and
- the facts demonstrate that the person did not drive the vehicle to that location while under the influence.
Utah Code § 41-6a-501(1)(a).
These requirements matter. Merely saying, “I wasn't driving when the police arrived,” does not necessarily resolve a Utah DUI case. The prosecution may attempt to prove either that the person previously drove while impaired or that the person nevertheless exercised actual physical control over the vehicle.
What Facts Matter in an Actual-Physical-Control DUI Case?
When defending one of these cases, I would want to know much more than whether the defendant was intoxicated.
The important factual questions can include:
- Where was the defendant sitting?
- Was the defendant awake or asleep?
- Where were the keys?
- Were the keys in the ignition?
- Was the engine running?
- Was the vehicle lawfully parked?
- Who drove the vehicle to that location?
- When did the defendant begin drinking or consuming drugs?
- Was anyone else present who could have driven?
- Did the defendant call someone for a ride?
- What did the defendant tell the police?
- What does body-camera footage actually show?
- Are there text messages, phone records, receipts, surveillance video, GPS information, or witnesses establishing when the vehicle arrived?
- Can the prosecution prove that the defendant drove to the location while already impaired?
These cases can therefore turn on a detailed reconstruction of events before the police ever arrived.
Sleeping It Off in Your Car
People sometimes assume the safest thing to do after drinking is to get into their vehicle and “sleep it off.”
Utah's current statute provides considerably more protection for that situation than a simple statement that every intoxicated person inside a vehicle is automatically in actual physical control.
The statutory exclusion specifically addresses a person who is asleep, outside the driver's seat, with the engine off, lawfully parked, where the evidence shows the person did not drive there while impaired. Utah Code § 41-6a-501(1)(a).
Notice, however, how fact-specific that protection is.
Moving from the passenger seat to the driver's seat, starting the engine for heat, leaving the vehicle illegally parked, placing the keys in the ignition, or evidence suggesting that the person drove to the location after becoming impaired can substantially change the analysis.
Who Decides Whether Someone Had Actual Physical Control?
When actual physical control is genuinely disputed at a jury trial, it is a fact question for the jury under the court's instructions. In a bench trial, the judge acts as the factfinder.
Wahlstrom demonstrates how important that distinction can become. The jury struggled with the actual-physical-control issue and sent questions to the trial court during deliberations. The jury eventually convicted Wahlstrom of DUI.
The Utah Court of Appeals ultimately reversed the DUI conviction and remanded for a new trial or other appropriate proceedings because it concluded that a supplemental instruction given to the deadlocked jury—an Allen charge—was coercive and that defense counsel rendered ineffective assistance by failing to object. The appellate court did not reverse on the ground that Wahlstrom could not, as a matter of law, have been in actual physical control.
That distinction is important when reading the case.
Actual Physical Control Can Be a Real DUI Defense
Actual physical control is not an issue in most Utah DUI cases because the evidence usually involves conventional driving: a traffic stop, collision, observed traffic violation, or an officer actually seeing the defendant operate the vehicle.
But when police encounter an intoxicated person in a parked vehicle, actual physical control deserves careful examination.
The difference between driving, actual physical control, and merely being a passive occupant of a vehicle can determine whether the State can prove an essential element of DUI beyond a reasonable doubt.
At Howard Lewis & Petersen, P.C., we defend DUI and other criminal cases throughout Utah. When actual physical control is disputed, the defense should examine not merely where the police found the accused, but how the vehicle got there, who drove it, when any alcohol or drugs were consumed, where the accused was sitting, where the keys were located, and whether the accused actually had the ability to exercise control over the vehicle.
State v. Wahlstrom (2026) is a useful reminder that in Utah DUI law, the question is not always simply:
“Were you driving?”
Sometimes the real question is: