The Arizona Supreme Court last Wednesday made it easier for prosecutors to convict intoxicated individuals who were not driving of driving under the influence of alcohol (DUI). The expanded policy was handed down in the context of a case involving Vincent Zaragoza who was arrested on April 29, 2006 for sitting a car with a blood alcohol content of .36. On that day, Zaragoza had gotten into an argument with a woman at an apartment complex. He went to his car in the parking lot of the complex, got in and -- according to Zaragoza -- put his key in the ignition briefly to lower the window and turn on the radio. Before anything could happen, a police officer ordered him out of the vehicle. The car's engine had not been started, but Zaragoza was on his way to jail.

Under Arizona law, a DUI conviction requires "actual physical control" of a vehicle. A trial court interpreted this provision by instructing the jury to find Zaragoza guilty if he had "potential use" of a vehicle. The court of appeals overturned the conviction because the instruction appeared to present the opposite of the standard set by the law.

"Because the instruction could have been interpreted by the jurors as requiring them to find Zaragoza guilty based on control of his vehicle he might have hypothetically exercised but never did, that instruction was erroneous," the appeals court ruled. "We believe the legislature intended to criminalize an impaired person's control of a vehicle when the circumstances of such control -- as actually physically exercised -- demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion."

The appellate court was following early court precedents that offered a clear safeguard to motorists who decided to pull well off the road, turn off the engine and sleep off the drinking without incurring a DUI. The state supreme court in 1995, however, decided it wanted to expand the number of convictions for DUI and created a new approach.

"The totality approach permits drunk drivers to be prosecuted under a much greater variety of situations -- for example, even when the vehicle is off the road with the engine not running," the court ruled in the 1995 Arizona v. Love case. "The drunk who turns off the key but remains behind the wheel is just as able to take command of the car and drive away, if so inclined, as the one who leaves the engine on. The former needs only an instant to start the vehicle, hardly a daunting task."

In last week's ruling, the supreme court unanimously insisted that "potential use" is not contrary to the definition of "actual control." The justices concluded that as long as a jury finds that, even though an individual had not been driving, he "posed a threat" to the public by his potential or "imminent" control of a vehicle, he can be found guilty. The high court dismissed the appellate court's idea that this approach could lead to absurd situations.

"The instruction does not raise the specter that any impaired person with access to a vehicle could be convicted for being in actual physical control of a vehicle," the high court ruled. "The defendant's intent is not an element of the strict liability offense of driving while intoxicated."

The high court reversed the appeals court decision and affirmed that of the trial court while setting out a new jury instruction for courts to follow. A copy of the decision is available in a 40k PDF file at the source link below.

The newly approved Arizona DUI jury instruction:

In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to himself or others at the time alleged. Factors to be considered might include, but are not limited to:

1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle's headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.

This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.