Can You Get a DUI in Arizona Without Driving? What State v. McKinney Teaches Phoenix Drivers

Q: Can you be convicted of DUI in Arizona if no one saw you driving?

Yes. Arizona's DUI statute, A.R.S. § 28-1381, criminalizes both driving and 'actual physical control' of a vehicle while impaired. In State v. McKinney, the Arizona Court of Appeals upheld a DUI conviction even though no witness testified to seeing the defendant actually drive. The jury was allowed to infer actual physical control from circumstantial evidence, including the defendant being found in the driver's seat with the engine running.

Q: What is 'actual physical control' under Arizona DUI law?

Actual physical control means a person has the present ability to operate a vehicle while impaired, even if the vehicle is not moving. Arizona courts look at the totality of the circumstances, including whether the engine was running, where the person was seated, whether the windows were up or down, and whether the person was awake. No single factor is automatically decisive.

Q: What evidence did the State use to prove actual physical control in the McKinney case?

The responding officer testified that the defendant was alone in a vehicle that had crashed into a pole, with the engine running and the windshield wipers active. The defendant was found lying in the driver's seat, appeared to be trying to shift the vehicle into drive and reverse, and was holding an open bottle of alcohol. The Court of Appeals found this circumstantial evidence sufficient for a jury to find actual physical control.

Q: Can a BAC test taken hours after a DUI stop still be used against you?

Yes. Arizona allows the State to use 'retrograde extrapolation,' a scientific method toxicologists use to estimate what a person's blood alcohol concentration (BAC) was at an earlier time, based on a test taken later. In McKinney, a blood draw at 1:35 a.m. showing a BAC of 0.265 was used to estimate the defendant's BAC was between 0.251 and 0.308 within two hours of his contact with police, well above Arizona's 0.08 legal limit.

Q: Is a police officer's statement about why they responded to a scene considered hearsay?

Not always. In McKinney, the court ruled that an officer's testimony explaining why she was flagged down was not hearsay because it was not offered to prove the underlying event happened, but only to explain the start of the investigation. Statements offered for a non-truth purpose, such as explaining an officer's actions, generally fall outside Arizona's hearsay rule under Ariz. R. Evid. 801(c).

Q: Can a DUI charge be reversed because of how the indictment is worded?

Only in limited circumstances. Arizona treats driving and actual physical control as alternative theories under the same DUI statute, not separate crimes. In McKinney, the appeals court held that an indictment does not need to specify which theory the State intends to use, as long as the defendant has enough notice to prepare a defense. A defendant must also show actual prejudice from any wording issue to win on appeal.

Q: Should I represent myself in an Arizona DUI trial?

Self-representation in a DUI trial carries serious risk. Defendants who represent themselves are responsible for raising every objection, preserving every issue for appeal, and meeting strict procedural rules without legal training. Appeals courts generally hold self-represented defendants to the same standards as licensed attorneys, which makes mistakes made at trial difficult or impossible to fix later.

Last updated June 2026. This post discusses a published Arizona Court of Appeals decision and is provided for general educational purposes. It is not legal advice for any specific case.

One of the most misunderstood parts of Arizona's DUI law is this: you do not have to be caught driving to be convicted of DUI. A recent Arizona Court of Appeals decision, State v. McKinney, 1 CA-CR 22-0415 (Ariz. App. Dec. 3, 2024), shows exactly how this works in practice, and why the legal concept known as "actual physical control" catches so many Arizona drivers off guard.

Below, we break down what happened in the case, what the court decided, and what it means for anyone in Phoenix, Scottsdale, Tempe, Mesa, or elsewhere in Maricopa County who is facing a DUI charge where no one actually witnessed them behind the wheel.

What Happened in State v. McKinney

NOTICE: This case is a memorandum decision which means it is not for official publication under Arizona Supreme Court Rule111(c). The decision is not precedential and may be cited only as authorized by rule. Although not official precedent it does give an indication of what the court of appeals thinks about these issues.

According to the court's decision, a responding Phoenix-area officer was flagged down by a bystander who reported that a vehicle had struck a person on a bicycle and then crashed into a pole. When the officer arrived, she found a white vehicle that had hit a pole, with the engine running and the windshield wipers active. David McKinney was the only person inside, lying down in the driver's seat. The officer testified he appeared to be trying to shift the vehicle into drive and reverse, even though it was stuck against the pole, and that he was holding an open bottle of alcohol when she opened the door.

McKinney showed classic signs of impairment, including bloodshot, watery eyes, slurred speech, and impaired movement. A blood draw taken later that night showed a blood alcohol concentration (BAC) of 0.265, more than three times Arizona's legal limit of 0.08.

McKinney chose to represent himself at trial, with the court appointing advisory counsel to assist. After a four-day jury trial, he was convicted on two counts of aggravated DUI and, due to his prior record, was sentenced as a category three offender to two concurrent ten-year prison terms.

The Key Legal Issue: "Actual Physical Control"

McKinney argued on appeal that the State never proved he was driving, since no witness directly saw him operate the vehicle. The Court of Appeals rejected this argument, relying on a well-established principle of Arizona DUI law: under A.R.S. § 28-1381, "driving" and "actual physical control" are alternative ways of committing the same offense, not two separate crimes that each require independent proof.

This matters because Arizona's DUI statute does not require the State to prove a defendant was actually operating a moving vehicle. It is enough to prove the person was in actual physical control of the vehicle while impaired. Arizona courts have long held that whether someone was in actual physical control is a question of fact based on the totality of the circumstances, including factors like:

Whether the vehicle's engine was running
Where the ignition key was located
Where the person was seated or positioned inside the vehicle
Whether the person was awake, asleep, or attempting to operate the controls
Whether the vehicle's location suggested it had recently been driven

In McKinney's case, the appeals court found that a vehicle freshly crashed into a pole, with the engine running, wipers on, and the only occupant attempting to shift gears, gave the jury more than enough circumstantial evidence to conclude McKinney had been driving, or at minimum was in actual physical control of the vehicle while impaired.

How the BAC Evidence Was Proven Despite the Time Gap

McKinney also argued the State could not prove his alcohol level was 0.08 or higher within the legally required two-hour window of driving or being in physical control of the vehicle, since his blood was not drawn until 1:35 a.m., hours after police first made contact with him around 10:25 p.m.

The State closed that gap using retrograde extrapolation, a scientific method that allows a toxicologist to calculate backward from a known BAC at one point in time to estimate what the BAC would have been earlier. The toxicologist testified that, based on McKinney's 0.265 BAC at the time of the blood draw, his estimated BAC within two hours of police contact would have ranged between 0.251 and 0.308. The Court of Appeals held this was sufficient evidence for the jury to find the BAC element of the charge proven beyond a reasonable doubt.

This is an important detail for anyone facing a DUI charge in Arizona. A delayed blood draw does not automatically help the defense. Prosecutors routinely use retrograde extrapolation testimony to connect a later test result back to the relevant time of driving or physical control.

The Hearsay and Indictment Arguments

McKinney raised two additional arguments on appeal, both of which the court rejected:

Hearsay objection: McKinney argued the officer's testimony about being "flagged down" by a bystander who described a hit-and-run was inadmissible hearsay. The court disagreed, explaining that the statement was not offered to prove the bicycle collision actually happened, but only to explain why the officer responded to the scene. Statements offered for a purpose other than proving the truth of the matter asserted generally fall outside Arizona's hearsay rule. The court also noted McKinney himself elicited similar testimony during his own questioning of the officer, which weakened his objection further.

Indictment wording: McKinney argued the indictment for the BAC-based charge did not fully track the statutory language, leaving him without adequate notice of the charge. The court held that because driving and actual physical control are alternative theories under the same statute rather than separate offenses, the indictment did not need to specify which theory the State intended to prove. McKinney also failed to show the wording caused him any actual prejudice at trial, which fundamental error review requires.

What This Means for You

If you are facing a DUI charge in Arizona and no one witnessed you driving, do not assume the case is weak. State v. McKinney illustrates several realities worth understanding:

"I wasn't driving" is not an automatic defense. Arizona's actual physical control law allows a conviction based on where you were sitting, whether the engine was running, and other circumstantial facts, even with zero eyewitnesses to actual driving.
A late blood draw does not necessarily help you. Prosecutors can use retrograde extrapolation to estimate your BAC at the relevant time, even if hours passed before testing.
Evidentiary objections require precision. The difference between hearsay and a non-hearsay explanation of police conduct can be subtle, and how an objection is framed at trial can determine whether evidence comes in or stays out.
Appeals courts hold self-represented defendants to the same procedural standards as licensed attorneys. McKinney represented himself at trial with advisory counsel available, and the court still required him to meet the same burden any defendant or attorney would carry on appeal, including showing both error and actual prejudice. Issues not properly raised or preserved at trial are far harder, and sometimes impossible, to win on appeal.

Every DUI case turns on its specific facts: where the vehicle was found, what the officer observed, how the field and chemical testing were conducted, and how each piece of evidence is challenged before and during trial. Cases built on actual physical control, rather than direct observation of driving, often come down to which side does a better job arguing the totality of the circumstances to the jury.

Frequently Asked Questions

Can you be convicted of DUI in Arizona if no one saw you driving?

Yes. Under A.R.S. § 28-1381, Arizona's DUI statute criminalizes driving or being in actual physical control of a vehicle while impaired. As shown in State v. McKinney, a jury can convict based on circumstantial evidence of physical control alone, without any witness testimony of actual driving.

What is "actual physical control" under Arizona DUI law?

Actual physical control means having the present ability to operate a vehicle while impaired, regardless of whether the vehicle is moving. Arizona courts weigh the totality of the circumstances, such as whether the engine was running, where the person was seated, and whether the person was awake or attempting to operate the vehicle's controls. No single factor controls the outcome.

What evidence did the State use to prove actual physical control in the McKinney case?

The responding officer testified that McKinney was the only person in a vehicle that had just crashed into a pole, with the engine running and windshield wipers on. McKinney was found lying in the driver's seat appearing to try to shift the vehicle into drive and reverse, and was holding an open bottle of alcohol. The appeals court found this circumstantial evidence sufficient.

Can a BAC test taken hours after a DUI stop still be used against you?

Yes. Arizona permits the use of retrograde extrapolation, a scientific method toxicologists use to estimate a person's BAC at an earlier point in time based on a test conducted later. In McKinney's case, a 1:35 a.m. blood draw showing a 0.265 BAC was used to estimate his BAC was between 0.251 and 0.308 within two hours of his contact with police.

Is a police officer's statement about why they responded to a scene considered hearsay?

Not necessarily. In McKinney, the court found that an officer's testimony explaining why she was flagged down was not hearsay, because it was offered to explain the start of the investigation rather than to prove the underlying event occurred. Statements offered for a purpose other than proving the truth of the matter asserted typically fall outside Arizona's hearsay rule under Ariz. R. Evid. 801(c).

Can a DUI charge be reversed because of how the indictment is worded?

Only in limited situations. Arizona treats driving and actual physical control as alternative theories under the same statute, not separate crimes, so an indictment generally does not need to specify which theory the State intends to prove, as long as the defendant has enough notice to mount a defense. A defendant must also show the wording caused actual prejudice at trial.

Should I represent myself in an Arizona DUI trial?

Self-representation carries real risk. A self-represented defendant is responsible for raising every objection, preserving issues for appeal, and following the same procedural rules as a licensed attorney, with no greater leniency from the court. Mistakes at trial, including issues that are not properly objected to or preserved, can be very difficult to fix later on appeal.

Where can I read the full McKinney decision?

The full memorandum decision is publicly available through the Arizona Court of Appeals, First Division, under case number 1 CA-CR 22-0415, decided December 3, 2024.

This article discusses a published Arizona appellate decision for general educational purposes only. It does not constitute legal advice, and reading it does not create an attorney-client relationship. Every DUI case depends on its own specific facts and evidence. If you are facing a DUI charge in Arizona, consult a licensed Arizona attorney about your individual situation.

Can You Get a DUI in Arizona Without Being Seen Driving?