Not Guilty, Complete Acquittal At Jury Trial – DUI and DWI (.109 BAC) – State v. Mr. D (DMC 17110) – Mar 23, 2022 – Phoenix City Court (Case No. 5598306):
Mr. D had pulled up to a friend’s apartment complex, which was at a gated community. He buzzed his friend, and his friend did not answer. Mr. D then turned his vehicle around and parked against the curb on the driveway exiting the area of the apartment complex. Eventually, he was let in through a pedestrian gate and he joined his friend in his apartment.
While in his friend’s apartment, he had some drinks and enjoyed his friend’s company. At one point, he went outside in order to smoke cigarettes. As he was going to get another pack of cigarettes, he exited the apartment complex through the pedestrian gate to go to his truck. Once in his truck, he started the engine in order to keep himself warm (because it was January and it was very cold out), while he smoked his cigarettes. As he was listening to music, he eventually fell asleep. His truck had been running for about two hours when another resident of the apartment complex called the Police to report a tuck running without anyone inside. Once the Police arrived, they saw Mr. D reclined in the seat, sleeping. They eventually woke him up, had him exit the truck, and performed Field Sobriety Tests. He was then placed under arrest and taken down to the Police station. Once at the station, he provided a blood sample which revealed a .109 BAC.
Mr. D subsequently contacted our Firm, and while he was in his initial consultation, he indicated he had no intention of driving and was merely using his vehicle as temporary shelter while he smoked his cigarettes. We then mounted an APC (Actual Physical Control) defense, and presented this to the Prosecutor. The Prosecutor felt there was not enough evidence of Lack of Actual Physical Control, and the case went to Trial. During the course of the Trial, Mr. D testified about his situation, and that testimony, combined with the 911 caller indicating that the truck had been there for two full hours, convinced the Jury that he had no intentions of driving the vehicle. Once they found he was not in Actual Physical Control, they returned a verdict of Not Guilty on all charges.
