A DUI Without Driving: What is Actual Physical Control?

January 04, 2022 by Sabah Khalaf

It’s natural to assume that in order to be charged with driving under the influence (DUI), you have to be caught driving, right?

Not necessarily. Actual physical control of a vehicle while intoxicated (APC) doesn’t require that the State prove you were driving at the time they pulled you over. APC has the same punishment as a DUI, but doesn’t require the State to prove you were driving.

What is Actual Physical Control?

Actual physical control of a vehicle while intoxicated, regularly referred to as “APC,” can be charged when you are found intoxicated in your vehicle, but weren’t necessarily seen driving. This is a very complex charge that can be applied to both the most severe DUIs and the mildest cases you wouldn’t think would be criminal.

Actual physical control requires the State to prove: (1) you are in actual physical control of a motor vehicle; (2) you are on a public road or a private road that accesses a single or multi-family unit dwelling; and (3) you are under the influence of an intoxicating substance.

To help clarify how the law works, we’ll break down each of these three elements.

What does it mean to be in actual physical control of a motor vehicle?

The first element, “actual physical control of a motor vehicle,” is the part that confuses most people. As it’s written, the law_ does not require you to be actually driving the car. _This element can be proven by a few key factors. First, you must actually be in the car and the car must be operable. If you are found intoxicated in a car that doesn’t work and can’t move, this does not qualify as having actual physical control of a motor vehicle. If you are sitting outside of your car and the car isn’t running, this also does not meet this element. However, if you are sitting in the passenger seat or the back seat of the vehicle and it is running, you can still meet this element if you have the keys in your possession.

This means if you get drunk and fall asleep in the back of your car, you can be charged with actual physical control of a motor vehicle while intoxicated. This is because the car is operable, and you have the ability to start and move the car.

What roads count as public roads?

You can be charged with actual physical control of a vehicle while intoxicated on almost every road. “Public roads” include all roads you drive on, as well as any parking lots. For example, if you pull into a parking lot and try to sleep off the alcohol while in your car, you are still on a public road for the purposes of an APC charge.

Another tricky part of this element is the language about private roads that attach to single or multi-unit family dwellings. This means driveways that attach to homes. And surprisingly, it encompasses your own driveway. If you get drunk and spend the night in your car in your driveway, you can be charged with APC.

What constitutes being under the influence of an intoxicating substance?

Just like with a DUI, there are a few ways the State can prove intoxication. Oklahoma statute allows:

  1. A blood alcohol content (BAC) of .08 or greater, as displayed by a blood test or breathalyzer
  2. Performance on standardized Field Sobriety Tests
  3. Any alcohol or drugs found in or around the vehicle
  4. General observations by the arresting officer (such as smell of alcohol or bloodshot eyes)

The State may use other methods to prove intoxication, but we’ll explain the four that are implicitly allowed by the statute.

BAC of .08 or higher

Getting a BAC result of .08 or higher from a breathalyzer or blood test is the most common way to prove intoxication. If you choose to take the breath test, a police officer will administer it to you either on the side of the road or at the police station. If you choose to take a blood test, it will be administered by a nurse at a hospital close to where you were pulled over. You have the right to refuse to take both of these BAC tests. However, refusing does not protect you from being prosecuted. There are three other ways the State can prove intoxication.

Standardized Field Sobriety Tests

The second option for proving intoxication is the standardized field sobriety tests. Just like with a breathalyzer, you have the right to refuse to take this test.

During a field sobriety test, police officers ask you to perform the following:

(1) Horizontal gaze nystagmus: A horizontal gaze nystagmus is an involuntary jerking of the eyes when they reach certain angles. When you are intoxicated, the eyes jerk more easily, in much more exaggerated ways. During this test, officers ask you to follow a light or a pen with your eyes—up and down, side to side, in circles, etc.—and note your eye movements.

(2) Walk and turn: This test requires you to walk forward in a heel-to-toe formation, turn around, and walk back. Officers are looking for whether you: (1) Begin before the instructions are finished; (2) Lose balance while listening to the instructions; (3) Cannot touch heel to toe; (4) Lose balance while turning; (5) Stop to regain balance; (6) Take an incorrect number of steps; (7) Use arms to balance; (8) step off the line.

(3) One leg stand: The officer asks you to stand on one leg and count for 30 seconds. During this time, the officer is checking to see if you: (1) Hop to maintain balance; (2) Sway while balancing; (3) Put your foot down; and (4) Use your arms to balance.

While these are the three primary tests, officers can also choose to administer others, such as putting your finger to your nose and reciting the alphabet. During all of these tests, officers observe “clues” that help indicate whether someone is intoxicated.

Any alcohol or drug found around the vehicle

If you have an open container of alcohol in the vehicle, or even on the ground next to the vehicle, this can be used to show proof of intoxication. The container can be a beer can, or even a reusable bottle that smells of alcohol. Drug paraphernalia, such as a marijuana pipe or a baggie with marijuana residue, can also be used to show intoxication.

General observations of the arresting officer

Police officer observations can be anything from smelling alcohol on your clothes to noting slurred speech or bloodshot, watery eyes. One common observation is the appearance of raised taste buds that are green in color. While many officers claim to see this on individuals who smell of marijuana, there is no evidence that marijuana consumption causes raised, green taste buds and there is no photographic documentation to support the observation.

Any amount of a controlled substance is an illegal amount of a controlled substance

Despite the legalization of medical marijuana, this rule still rings true. If you have any amount of a controlled substance in your system, regardless or whether it is marijuana or a methamphetamine, you’re “under the influence” for the purposes of APC. While a breathalyzer will not show drugs in your system, a blood test will; and even trace amounts are sufficient to prove intoxication.

Why do we have an APC law?

While it may sound like this law is meant to prevent people from sleeping in their cars while intoxicated, the origins of the law are more benign. Prior to the enactment of the APC law, some of the most egregiously intoxicated individuals were not being charged with DUI. In these situations, the individuals would be so drunk that they would pass out while driving, and their car would inevitably hit something and stop.

Despite their obvious and increased intoxication levels, people who passed out while driving did not meet the required elements of a DUI. Without the APC law, these individuals would not be charged; and people who were sober enough to keep driving, but intoxicated enough to be over the legal limit, faced criminal charges. While the APC law does seem unfair because it does sometimes result in criminal charges for people who are trying to do the right thing, it does have a legitimate purpose.

Is an APC a misdemeanor or a felony?

How you’re charged for an APC depends on your criminal history. Your first charge for actual physical control of a vehicle is a misdemeanor. However, APC is a predicate offense. This means if you get another charge for this crime within 10 years, your new charge will be a felony.

APC isn’t the only charge that can lead to a felony. If you have a misdemeanor DUI and get an APC within 10 years of that DUI, your new APC will be a felony. The reverse is also true: An old APC can lead to a felony DUI.

Note: A driving while intoxicated (DWI) conviction is not a predicate, and any prior DWI convictions will not enhance an APC or DUI charge from a misdemeanor to a felony.

The Bottom Line

Actual physical control of a vehicle while intoxicated is a non-driving DUI. If you are found intoxicated in your vehicle, even if you’re aren’t driving, you can be charged with a crime. If you have been charged with an APC and need help navigating the legal system, contact us for a free consultation.

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