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State v. Mr. W. (DMC No. 5066)

Police were called out to State Trust Land regarding a stranded pickup truck that appeared to try to drive through a cable fence. When Police arrived, they found Mr. W’s truck hung up on a cable with a large amount of transmission fluid leaking under the bottom. Mr. W was reclined in the driver’s seat and was asleep. The Officers claimed that Mr. W’s engine was still on.

After Mr. W was awakened, it appeared that he was extremely intoxicated. The Officer ran a background check and found that he had 2 prior DUI’s from several years earlier. Various empty Budweiser beer cans were found around his truck. When he was asked about drinking, he stated that he drank after the truck got stuck. He also said he had called his wife to come and get him. As Mr. W was being arrested for Felony Aggravated DUI pursuant to Arizona Revised Statute ARS 28-1383, his wife attempted to call him on his cell phone.

At Trial we were able to argue that the State could not prove that the drinking had occurred prior to the accidents. In addition, we argued that they could not prove Mr. W was in “Actual Physical Control” of his truck when he was found by the Officer’s. He was merely using it as a temporary shelter as he waited for his wife to arrive. Even if his engine were running (as the cops claimed), this would be irrelevant as he was currently under “Safe Harbor” according to the law. The Jury agreed and returned the verdict of Not Guilty on all charges. Mr. W was facing a minimum of 4 months in Prison if he were to have been convicted.

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