What Happened: The Cooker Case

Early one morning in Pima County, two police officers came across an SUV that was stopped but running — engine on, in gear, lights on, music playing at full volume. The driver, Christopher Cooker, was asleep and completely unresponsive in the driver’s seat, foot on the brake. The officers spent several minutes banging on the windows and shouting before he finally woke up.

When Cooker rolled down the window, he threw a punch at one of the officers, grazing her face. At the same moment, he lifted his foot off the brake, causing the SUV to roll over a curb and drive into a brick wall.

Officers noted that Cooker’s eyes were glossy and bloodshot, his speech was slurred, and he smelled of alcohol. Field sobriety tests confirmed signs of impairment. A blood draw taken later revealed a BAC of .263 — more than three times the legal limit of .08.

A jury convicted Cooker of two counts of aggravated DUI and one count of aggravated assault on a peace officer. The trial court sentenced him to concurrent prison terms, with the longest being 4.5 years. The Court of Appeals affirmed every conviction.

The Key Legal Concept: “Actual Physical Control”

Most people assume a DUI requires you to be actively driving. In Arizona, that’s not the full picture.

Under A.R.S. § 28-1381, it is illegal to drive or be in actual physical control of a vehicle while impaired. That second phrase — actual physical control — is what makes cases like Cooker’s possible. Cooker wasn’t driving when officers found him. He was asleep. But the engine was running, the car was in gear, and he was in the driver’s seat with his foot on the brake. That was enough.

Cooker’s primary defense against the DUI counts was that he was neither driving nor in actual physical control of the vehicle. The jury rejected that argument. The facts simply didn’t support it — and the Court of Appeals agreed that the evidence was overwhelming.

Why “Actual Physical Control” Is Fact-Specific — And Why That Matters for Defense

Here’s the important flip side: “actual physical control” is not automatic. Arizona courts look at the totality of the circumstances, and the facts genuinely matter. The same situation can look very different depending on a few key details.

In Cooker’s case, almost every factor cut against him. Engine running, in gear, driver’s seat, foot on the brake, on a public road. There was very little room to argue he wasn’t in actual physical control.

But not every case looks like that. If your facts are different — if the engine was off, if you were in the back seat, if you were parked in a private lot trying to sober up — those details can make a real difference. That’s exactly why you need an attorney who knows how to use the facts in your favor, not just accept the charge at face value.

The Aggravating Factor: A Revoked License

Cooker’s DUI charges weren’t just standard DUI — they were aggravated DUI. One of the reasons: his driver’s license had been revoked at the time.

Under A.R.S. § 28-1383(A)(1), driving under the influence while your license is suspended, cancelled, revoked, or refused — or while subject to an ignition interlock restriction — elevates a DUI from a misdemeanor to a Class 4 felony. That single fact changes everything about the consequences you face.

Common aggravating factors in Arizona include:

• Driving on a suspended, revoked, or cancelled license
• Driving the wrong way on a highway while impaired (see our post on Franz v. State)
• Having a passenger under age 15 in the vehicle
• Committing a DUI while required to use an ignition interlock device
• A third DUI offense within 84 months

What Are the Penalties for Aggravated DUI in Arizona?

Aggravated DUI is a Class 4 felony in Arizona. Cooker received a 4.5-year prison sentence. The mandatory minimum consequences include:

• Mandatory prison time — minimum four months, served at 100% with no early release
• Permanent felony record — affecting employment, housing, professional licenses, and civil rights
• License revocation for a minimum of three years
• Ignition interlock device required on every vehicle you drive after reinstatement
• Substantial fines and fees
• Probation after release
• Drug and alcohol treatment requirements

A standard misdemeanor DUI carries jail time measured in days. An aggravated DUI carries prison time measured in years. If you are facing an aggravated DUI charge, the stakes are as high as they get short of violent crimes.

What Should You Do If You’ve Been Charged?

Whether you were driving, stopped, or asleep — if you’re facing a DUI charge in Arizona, here are your most urgent priorities:

1. Say nothing to law enforcement beyond providing your name and license. Politely decline to answer questions about where you were, what you drank, or why you were in the car. Everything you say can and will be used against you.
2. Request an MVD hearing within 30 days. After a DUI arrest in Arizona, your license will be automatically suspended unless you request a Motor Vehicle Division hearing within 30 days. This deadline is hard — miss it, and your license is gone. An attorney can file this immediately.
3. Don’t accept the charge as inevitable. Even in cases that look overwhelming on the surface, there are often angles worth exploring: the legality of the stop, the blood draw procedure, the chain of custody for blood samples, the accuracy of BAC testing, and more.
4. Call a DUI defense attorney as soon as possible. The earlier you get an attorney involved, the more options you have.

Frequently Asked Questions

About Gordon Thompson

Gordon Thompson has practiced DUI and criminal defense exclusively in Arizona since 1982 — 47 years and more than 6,000 clients. He does not handle any other area of law. Every case on his desk is a DUI or criminal defense matter, which means he brings focused, experienced attention to every client’s situation.

He appears in Municipal and Justice Courts throughout Arizona, serves clients statewide, and offers free consultations by phone, text, or video. His fee is a flat all-inclusive rate — no surprise bills at the end.