Each state has its own definition of Actual Physical Control (APC). In a DUI setting and especially in Arizona, this term is misunderstood. Our office was responsible for winning the case some years ago that helped give this term a more concrete definition.
In a DUI case, the cop must be able to prove beyond a reasonable doubt that an accused drunk driver was “driving” or in “actual physical control” of the vehicle.
APC comes in to play typically where the accused is found asleep in the vehicle. Obviously, not driving, the issue is what was the intent — to drive or stop. One is permitted to pull completely off the roadway (the further the better) and cease control of the vehicle without fear of police intervention. As one drives, after drinking, the effects of alcohol can become more intense. Instead of trying to make it home, and perhaps hurt someone, the right thing is to pull over and either sleep it off or call for assistance and/or a ride.
One is not in physical control simply because the key is in the ignition or because the engine running. A recent Arizona Supreme Court decision went even further and held that actual physical control does not mean “potential” control. To determine the accused driver’s intent, the test must consider the totality of circumstances. We are often very successful at arguing this concept and achieving “not guilty” verdicts.