Road Law – October 2022
A common issue in driving under the influence cases is the term “actual physical control” and whether it is proper for a driver to be charged with an alcohol-related offense.
In this issue, we take a look at the subject as well as a brief look into “implied consent” and the ramifications of declining to submit to an alcohol test.
Q. I was parked at the local bowling alley and had been drinking on and off through the day. As I was sitting in my car, a local police officer came to the door and asked me to submit to a field sobriety test because he thought I might be under the influence. I told him I wasn’t driving and I wouldn’t agree to take any tests. I was arrested for DUI and also had my driver license taken for refusing to take a Breathalyzer. How can they do this if I wasn’t driving?
A. Actual physical control does not require that you be caught driving the automobile. In most cases, being found inside an operable vehicle while under the influence is enough to start the ball rolling.
The following are some guidelines that are used to determine whether an actual physical control charge is appropriate:
- Where in the vehicle was the driver located?
- Was the ignition key in the vehicle? Where was the key?
- Was the engine running?
- Where was the vehicle parked? How did it get there?
- Was the vehicle disabled? If so, how easily could the vehicle be made movable?
While the list is not exhaustive, the intent is to determine if you may have driven the vehicle or you have the ability to start and move the vehicle under the influence while it is in your control.
When you obtain a driver’s license, you are agreeing to a state’s implied consent law, and if an officer has probable cause to believe that you have been driving under the influence or in actual physical control of a vehicle that you will provide a sample for testing or have your license suspended for failing to do so.
Each state handles the administrative license cases differently. Some states have programs in place to try and rehabilitate the driver without the necessity of having an administrative hearing to contest the blood alcohol level or refusal, while others are more draconian and have strict deadlines that must be followed to request a hearing.
Failure to meet these deadlines essentially ends your ability to contest or sometimes seek a license modification hearing entirely.
If you happen to get a modified or restricted license, there are usually strict limitations with these types of licenses. For example, you may need an interlock device on your ignition, there may be time restrictions, specific locations to travel to and from, and most will not allow you to drive for work, so if you had a CDL, those privileges would not be available.
Q. How does this apply to a commercial motor vehicle while parked?
A. While most commercial motor vehicles are set up with some type of living accommodation, there is no different treatment of a commercial vehicle as a home or residence that would treat it any differently than an automobile. So you certainly put yourself at risk if you are in an investigatory situation where you happen to be under the influence and have the ability to drive or move the vehicle. LL
Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella; Road Law, 3441 W. Memorial, Suite 4; Oklahoma City, OK 73134; call 405-242-2030; fax 888-588-8983; or contact them via RoadLaw.net.
This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone’s legal situation is different. Consult with an attorney for specific advice on your situation.