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In Arizona, What Is “No Actual Physical Control”

A conviction of a DUI, driving under the influence of alcohol or drugs in the state of Arizona, is reliant on proof that you were actually driving the vehicle while intoxicated. Where things become a bit “gray” is under the term of “no actual physical control”. No actual physical control is a confusing concept to many drivers in the state.

The definition of actual physical control of a vehicle is determined under a variety of factors with the courts using “totality of the circumstances” to determine whether a driver had actual physical control of their vehicle while intoxicated. If actual physical control is deemed to have existed, then a DUI charge can be enforced.

When you are facing DUI charges, it is very important that you have an experienced lawyer on your side. David Michael Cantor is a Phoenix DUI attorney who has helped change the laws of the state of Arizona in regard to actual physical control. The case which resulted in changes for all state residents was State v. Love, heard in the Supreme Court of Arizona in 1995. If you are up against DUI charges and penalties, DM Cantor can help you win your case.

Arizona DUI Laws Are Strict

AZ DUI laws are known to be some of the toughest in the nation. In prior years, it was possible to be charged with DUI without driving at all, as long as your keys were in the ignition. Now, after State v. Love in the Arizona Supreme Court, the court must consider a multitude of factors surrounding the driver’s behavior and circumstances of the traffic stop before enforcing the actual physical control rule.

Some factors the court must consider include:

  • Driver’s reason for pulling over
  • What the driver was doing in the car when the police arrived
  • Whether the car was in neutral
  • If the car was off the main road in a parking lot, rest area, outside a drive-thru, etc.
  • Whether the engine was off or running
  • If the parking brake was on
  • If the engine was being used for climate control

If you are approached by an officer because you are sitting in an idle vehicle while intoxicated, there are other considerations that may help the courts decide whether you have actual physical control. Those include:

  • Location of your vehicle
  • Purpose for your stop
  • Vehicle status, engine on or off

No actual physical control is something that can be proven and is effective by a DUI defense lawyer. As long as you were not posing any threat or danger to others and you stopped your vehicle away from main traffic, you can be determined as not to have been driving under the influence due to no actual physical control.

Other Possible Defenses against DUI Charges

When you are facing DUI charges, there are other effective defenses beyond no actual physical control. The Constitution and statutes of Arizona can be used to prove innocence against DUI in court.

Some other possible defenses include:

  • Lack of reasonable suspicion for a traffic stop by an officer
  • No probable cause to arrest for DUI
  • Violation of your Miranda Rights
  • Violation of the right to counsel after arrest
  • No Corpus Delicti, meaning nothing more as proof beyond one person’s statement
  • Denial of the right to obtain an independent blood or urine test or other independent evidence
  • Chemical testing outside of the time limit of “within two hours of driving”
  • Intoxilyzer or Gas Chromatograph chemical test administration issues

A good example of how one of these issues can cause problems for the state’s case and help an individual DUI defense is that of problems with the administered chemical test. If the Intoxilyzer or Gas Chromatograph test is not properly administered or is found to be faulty, the case can be made ineffective. These tests are conducted on machines governed by regulations. Even if the machine is used properly and in accordance with these regulations, the results can still be faulty.

Common errors of Intoxilyzer breath tests (commonly referred to as “breathalyzer“) include:

  • Range of error, meaning variables and ratios presented by the instrument are disputable
  • Operator error, meaning the machine was not properly used
  • Mouth alcohol, with alcohol detected from the mouth and not having actually been consumed, such as in the case of using mouthwash or breath sprays
  • Radio frequency interference

This machine used for breath tests must be calibrated regularly in order to remain effective and for results to register accurately. Calibration records and QA records can be reviewed to determine that the machine was not functioning as it should have been for the tests.

Common errors of Gas Chromatograph include:

  • Blood contamination
  • Human error by the phlebotomist taking the blood sample
  • Human error by the person analyzing the blood

You Need an Effective, Experienced Lawyer for a DUI Case

Regardless of whether your defense will be related to errors of chemical testing equipment, no physical control or any other factors, you need an experienced lawyer for your DUI case. Call DM Cantor today at 602.307.0808.

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