2/25/16 In Arizona a person can be found guilty of DUI even though they are not driving. This concept is known as Actual Physical Control. A person is in Actual Physical Control if they actually posed a threat to the public by the exercise of present or imminent control over a motor vehicle while impaired. A defense to Actual Physical Control is that the person was simply using the vehicle as a temporary shelter. Courts have said that in determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence. This includes a number of factors such as, 1. Whether the vehicle was running; 2. Whether the ignition was on; 3. Where the ignition key was located; 4. Where and in what position the driver was found in the vehicle; 5. Whether the person was awake or asleep; 6. Whether the vehicle’s headlights were on; 7. Where the vehicle was stopped; 8. Whether the driver had voluntarily pulled off the road; 9. Time of day; 10. Weather conditions; 11. Whether the heater or air conditioner was on; 12. Whether the windows were up or down; 13. Any explanation of the circumstances shown by the evidence.
In State v. Tarr, the instruction given to the jury did not include the Temporary Shelter Defense language. The court of appeals said that the jury instructions could have properly included the Temporary Shelter Defense, however, the court refused to reverse the conviction. In doing so the court said the jury instructions which were given implied that the Temporary Shelter Defense existed. Also the defense counsel was permitted to argue the Temporary Shelter Defense to the jury. Therefore the court refused to reverse the conviction even though the jury was not instructed on the Temporary Shelter Defense.
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2014/CR%2012-0791.pdf
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