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What is 'actual physical control' and why does it matter?

As criminal defense attorneys, we have heard our share of drunk driving arrest stories. They range from the close and unfortunate (e.g. “I was right around the corner from my house when they stopped me.”), to the “what were you thinking” variety (e.g. picking up someone from the police station while drunk). Perhaps the most unfortunate drunk driving arrest comes when a person is asleep in a car or is close to their vehicle.

In these situations, the police can make an arrest based on the “actual physical control” doctrine that has been adopted in criminal courts across the country. Essentially, you can be arrested and charged with DUI even if you are not physically driving down the road in your vehicle. You are only required to be behind the wheel or in a position where it is reasonable that you will be able to quickly operate the vehicle while you are intoxicated. 

This is why you may hear about a person being arrested for drunk driving while parked in their driveway, or while parked in a parking lot. A person can be fast asleep in their car and appear to be no threat to drive, but can be charged because they could potentially wake up and drive the car, even though they are still intoxicated.

Indeed, whether someone actually had actual physical control over a car is a debatable question, so a number of arguments can be made in defense of a DUI charge based on this notion. If you have questions about a drunk driving charge, contact an experienced criminal defense attorney.

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