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Actual Physical Control / APC

In the state of Utah, it is understandable for people to believe that in order for a person to be arrested for the criminal charge of driving under the influence (DUI), that motorist must actually have been driving. While operating a vehicle when a person is under the influence of alcohol, drugs, or any combination of both is certainly grounds for DUI charges, drivers are also prohibited from being in “actual physical control” (APC) of a vehicle while under the influence.

This three-word phrase has been repeatedly addressed by courts in Utah, with many motorists being convicted for DUI even though they were not driving. While prosecutors will often focus on the ability of alleged offenders to control or operate a vehicle in these cases, it is important to understand that these people can still avoid convictions by effectively proving their lack of intent to do so.

Salt Lake City Actual Physical Control DUI Lawyer

If you were recently arrested for DUI in Utah because you were allegedly in APC of a vehicle, you will want to immediately seek skilled legal representation. Levitt Legal, PLLC defends clients all over Salt Lake County against drunk driving charges, including residents of West Valley City, West Jordan, Taylorsville, Murray, South Jordan, Cottonwood Heights, Midvale, Draper, and Riverton.

Darren Levitt is an active member of multiple legal associations who works tirelessly to get these charges reduced or dismissed. He can review your case when you call (801) 455-1743 today to schedule a free, confidential consultation.


Utah Actual Physical Control Information Center


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Actual Physical Control Charges in Salt Lake County

The full title of Utah Code § 41-6a-502 is Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration. This section specifically states that a person may not operate or be in actual physical control of a vehicle in Utah if he or she either:

  • has sufficient alcohol in his or her body that a subsequent chemical test shows that he or she has a blood or breath alcohol concentration of 0.08 grams or greater at the time of the test
  • is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders him or her incapable of safely operating a vehicle
  • has a blood or breath alcohol concentration of 0.08 grams or greater at the time of operation or actual physical control

Most first offenses for DUI in Utah are class B misdemeanors, although certain aggravating factors can result in these crimes being classified as class A misdemeanors.


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Utah Court Cases Involving Actual Physical Control

For more than three decades, the issue of APC has been addressed and revisited by several Utah courts. Some of the most notable cases include:

State of Utah v. Charles Bugger

On July 28, 1969, Charles Bugger was asleep in the passenger seat of his automobile that was not running and was parked on the shoulder of a highway in Davis County. A Highway Patrol officer discovered Bugger asleep, awakened him, and smelled alcohol. Bugger was arrested for being in actual physical control of the vehicle while under the influence of intoxicating liquor.

The Utah Supreme Court reversed the conviction on April 6, 1971. In the court’s decision, Associate Justice R. L. Tuckett wrote:

The complaint charges the defendant with the violation of the statute above referred to which provides as follows:

It is unlawful and punishable as provided in subsection (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.

The defendant is here challenging the validity of the statute on the grounds of vagueness. However, we need not decide the case upon that ground. That part of the statute which states: "be in actual physical control of any vehicle" has been before the courts of other jurisdictions which have statutes with similar wordings. The word "actual" has been defined as meaning "existing in act or reality; * * * in action or existence at the time being; present; * * *." The word "physical" is defined as "bodily," and "control" is defined as "to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from actions; to curb." The term in "actual physical control" in its ordinary sense means "existing" or "present bodily restraint, directing influence, domination or regulation." It is clear that in the record before us the facts do not bring the case within the wording of the statute. The defendant at the time of his arrest was not controlling the vehicle, nor was he exercising any dominion over it.

However, Associate Justice A.H. Ellett wrote in dissent:

It does not matter whether the motor is running or is idle nor whether the drunk is in the front seat or in the back seat. His potentiality for harm is lessened but not obviated by a silent motor or a backseat position — provided, of course, that he is the one in control of the car. It only takes a flick of the wrist to start the motor or to engage the gears, and it requires only a moment of time to get under the wheel from the back seat. A drunk in control of a motor vehicle has such a propensity to cause harm that the statute intended to make it criminal for him to be in a position to do so.

Amado B. Garcia v. Fred C. Schwendiman

On November 1, 1980, Officer Gerald Ecker responded to a disturbance complaint at an apartment complex in Sunset, Utah. A gentleman had positioned his vehicle behind the automobile of Amado Garcia to prevent Garcia from backing out of his parking stall. There was also a fence in front of Garcia’s car. The officer testified that he saw Garcia alone in the vehicle behind the steering wheel attempting to turn on the ignition, and observed Garcia was apparently under the influence of alcohol. A second police officer arrived at the scene, obtained the keys from Garcia, and arrested him for being in actual physical control of a vehicle while under the influence of alcohol.

Even though Garcia was boxed in and unable to move, the Utah Supreme Court affirmed the decision of the lower court on April 1, 1982. Then-Associate Justice Christine M. Durham wrote:

As a matter of public policy and statutory construction, we believe that the "actual physical control" language of Utah's implied consent statute should be read as intending to prevent intoxicated drivers from entering their vehicles except as passengers or passive occupants as in Bugger. Therefore, under the facts before us, where a motorist occupied the driver's position behind the steering wheel, with possession of the ignition key and with the apparent ability to start and move the vehicle, we hold that there has been an adequate showing of "actual physical control" under our implied consent statute.

Richfield City v. James M. Walker

On June 30, 1987, James Walker drove to an inn seeking a room. When he was informed that there were no vacancies, Walker returned to his truck in the parking lot and went to sleep where he was subsequently discovered by a Sevier County sheriff's deputy. The deputy found Walker’s truck with the engine off, but the headlights were on, the doors were unlocked, and the keys were in the ignition. Walker was asleep on the seat, with his head toward the passenger door and a blanket over him. Walker submitted to an intoxilyzer test that registered his blood alcohol level at 0.21 percent.

In his appeal Walker did not dispute his intoxicated state, but argued that the Richfield City ordinance under which he was convicted is invalid and he did not have actual physical control over the vehicle. On March 26, 1990, the Utah Court of Appeals affirmed his conviction of being in actual physical control of a vehicle while having a blood alcohol level of 0.21 percent. In the decision, Judge Regnal W. Garff, Jr. established nine nonexclusive factors for determining whether a person is in actual physical control of a vehicle that have been repeatedly cited in later opinions:

  • Whether defendant was asleep or awake when discovered
  • The position of the automobile
  • Whether the automobile's motor was running
  • Whether defendant was positioned in the driver's seat of the vehicle
  • Whether defendant was the vehicle's sole occupant
  • Whether defendant had possession of the ignition key
  • Defendant's apparent ability to start and move the vehicle
  • How the car got to where it was found
  • Whether defendant drove it there

State of Utah v. Kelly S. Barnhart

On March 24, 1992, Kelly Barnhart drove his girlfriend's car to the grocery store in order to meet her. He consumed two cans of beer before driving to the store and consumed an additional seven cans of beer while he was waiting. A store manager called police when Barnhart was still in the parking lot after the store had closed, and a police officer found Barnhart sitting upright in the driver's seat with his head back. The car was not running and the engine was cold, but the keys were in the ignition. The officer conducted field sobriety tests and determined Barnhart was intoxicated. Testing at the jail later showed he had a blood-alcohol level of 0.18 percent.

The Utah Court of Appeals affirmed the conviction in a March 31, 1993 decision, with Judge Russell W. Bench writing:

To summarize, we recognize the following established legal guidelines that affect a trial court's factfinding discretion in these cases: the trial court must look to the totality of the circumstances, no single factor being dispositive as a matter of law, Walker, 790 P.2d at 93; the statute is intended to prevent intoxicated persons from causing harm by apprehending them before they operate a vehicle, Garcia, 645 P.2d at 654; Lopez, 720 P.2d at 781; a person need not actually move, or attempt to move, a vehicle, but only needs to have an apparent ability to start and move the vehicle in order to be in actual physical control, Garcia, 645 P.2d at 654-55.

This ruling is consistent with the public policy goal of preventing an intoxicated person from causing harm with a vehicle. An unconscious person, with the ignition keys in possession may, at any time, awake and attempt to exercise his or her control by operating the vehicle. See Garcia, 645 P.2d at 653-54 (statute is intended to prevent the danger to the public created when a person gets behind the wheel and has the ability to start the vehicle and drive away) (citing Hughes v. State, 535 P.2d 1023 (Ok. Cr.1975) ("an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist.")). The risk to public safety intended to be prevented by the statute therefore continues, albeit in a reduced degree, while a person is unconscious.


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Possible Defenses in Salt Lake County Actual Physical Control DUI Cases

The Barnhart decision demonstrates that an ability to operate a vehicle may be used to convict a driver of APC, but judges and juries are still able to consider an alleged offender’s intent. A number of circumstances can impact the ultimate outcomes to these types of cases.

Some of the defenses that an attorney may use to fight these charges include, but are not limited to:

  • Alleged offender was not in vehicle
  • Alleged offender did not possess keys
  • Keys were not in ignition
  • Vehicle was not capable of being operated
  • Alleged offender was not the only person in the vehicle
  • Alleged offender was found in passenger seat or back seat of vehicle

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Find an Actual Physical Control DUI Lawyer in Salt Lake City

Were you recently arrested for DUI in Utah on the basis of you being in APC of a vehicle? Make sure that you have proven and knowledgeable legal counsel capable of getting a favorable outcome to your case.

Levitt Legal, PLLC represents clients in Salt Lake County and surrounding areas, including Weber County, Morgan County, Davis County, Wasatch County, Utah County, Tooele County, Summit County, Box Elder County, and Cache County. Call (801) 455-1743 right now to take advantage of a free consultation that will allow Darren Levitt to review your case and discuss all of your legal options.

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266 East 500 South
Salt Lake City, UT 84111
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