Utah DUI:Driving Under the Influence . . . Without Driving?

I used to practice criminal defense law in California.  In California, in order to be guilty of the crime "Driving Under the Influence" the accused had to actually drive, the vehicle had to move, if only an inch, while the driver sat in in the driver's seat.

In Utah, a DUI is actually a DSUI "Drivers Seat Under the Influence."  Utah Code section 41-6a-501 outlines how a DUI is committed.  In that section it reads:  "A person may not operate or be in actual physical control of a vehicle in this state if the person . . . has a blood or breath concentration of .08 grams or greater . . . [or] is under the influence of alcohol, [or] any drug . . ."

The Utah Supreme Court has ruled that "actual physical control" in that statute prohibits an intoxicated driver from entering the vehicle.  Garcia v. Schwendiman, 645 P.2d 651, 654 (Utah 1982).  In deciding whether a driver is in control, the Utah Court of Appeal has ruled that a judge or jury can consider the following factors:

1. if the person in the drivers seat is asleep;
2. the position of the vehicle;
3. whether the motor is running;
4. if the person is in the drivers seat;
5. if the person is the only person in the vehicle;
6. whether the person in the vehicle has the keys;
7. could the person start the vehicle;
8. how the car got to where it was;
9. whether the person drove it there.

Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990).  Notice from that list that only one factor involved whether the person actually drove the vehicle.  Just sitting in the car with the keys is enough to convict someone of DUI if they are intoxicated.  Indeed, the Utah Supreme Court has found that an intoxicated motorist, asleep at the wheel in an inoperable truck, was in actual physical control of the vehicle and was therefore guilty of DUI.

I have represented individuals in Utah who were arrested for DUI when no one saw them drive.  One of my clients was arrested as he was entering his car, another was arrested in her home, and had her car towed from her driveway, because police heard that she had driven while intoxicated,  other clients have been arrested while sitting in the drivers seat waiting for a taxi or family member to pick them up because they knew they were too intoxicated or too drunk to drive.  Fortunately, I have been able to help these clients build a good defense, based on common sense, and they have been able to avoid DUI convictions.  Still, based on the way the law in Utah has been written and interpreted, facing a DUI in Utah without an attorney can lead to expensive, life changing results.

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