Using a Witness to Challenge the Driving Element of an Arizona DUI

Attorney Answer

Probably not on its own. Your friend's testimony helps, but it will not make a judge void the DUI, because Arizona's statute does not require that you were driving.

A.R.S. § 28-1381(A) makes it an offense to drive or be in actual physical control of a vehicle while under the influence. The statute does not define actual physical control and does not resolve borderline facts like a passenger who slides into the driver's seat after a breakdown. Arizona courts decide it case by case.

Potter v. Arizona Department of Transportation, 204 Ariz. 73, 59 P.3d 837 (App. 2002), is the case to understand, and it cuts both ways. Potter held that an officer can have reasonable grounds to believe a person was driving or in actual physical control even where the engine was off and the person was asleep in the seat — an officer may ultimately be proved wrong about physical control and the arrest still stands. Potter also collects the governing criminal-side rules: State v. Love, 182 Ariz. 324, 897 P.2d 626 (1995), rejected any bright-line test and left actual physical control to the fact finder on the totality of the circumstances; and State ex rel. O'Neill v. Brown, 182 Ariz. 525, 898 P.2d 474 (1995), holds the "safe harbor" does not shield a defendant from a driving charge if the State proves he drove while intoxicated before relinquishing control.

What that means for you: your friend's account goes to the fact finder along with everything else — where the keys were, whether the engine was running, where the car was stopped, how long you had been there, and what you told the officer. It is evidence, and it can be decisive. It is not an off switch.

What you can do

1. Read every piece of paperwork you were given for a notice of license suspension. If there is one, it carries its own deadline to request a hearing, that deadline is short, and it runs separately from your court case. 2. Have your friend write down his account now, dated, before memories move. 3. Tell your friend to speak with his own lawyer before he testifies. A witness who says he was the impaired driver may be creating exposure for himself. 4. Preserve the objective proof: body camera and dash camera footage, tow or roadside-assistance records, repair records showing the car was disabled, and any texts or calls from that night showing who was driving. 5. Stop discussing the facts with the officers or the prosecutor. Your account of who was driving is the case, and it should be presented once, through counsel.