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Old 2008-07-27
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Exclamation Arizona Appeals Court Says DUI Charge Requires Driving

Article: Arizona Appeals Court Says DUI Charge Requires Driving

Court of AppealsRecent court decisions across the country have upheld stiff sentences against those convicted of driving under the influence of alcohol (DUI), even when those individuals were either not in an automobile, or not driving at all. A New Jersey appellate court ruled last year, for example, that a man who tried to sleep off a night's drinking in his truck should pay $4000 in DUI fines (view opinion). A three-judge panel of the Arizona Court of Appeals turned the other direction on Wednesday. It concluded that drivers should be encouraged, not discouraged, to pull over when impaired.

The court's ruling came in the case of Vincent Zaragoza who on April 29, 2006 went and sat in his car with the key in the ignition while drunk. Tuscon Police Officer Daniel Barry happened to be watching as Zaragoza stumbled into the vehicle. Barry did not wait to see if Zaragoza might make an attempt to start the car. Instead, he immediately put the man -- whose blood alcohol reading was an estimated .357 -- under arrest.

Zaragoza explained his actions that night in court testimony. He said that he had just been thrown out of an apartment after an argument with his girlfriend. He went to his car to sleep and only put the key in the ignition to turn on the radio and lower the window. A Pima County judge instructed a jury to convict Zaragoza if they believed he had "physical control" of the vehicle and his "potential use" of it could have been dangerous. Zaragoza was then found guilty of driving under the influence and jailed for four months and was sentenced to an additional five years of probation. The appeals court reversed this lower court decision on the grounds that the judge's instructions used a flawed understanding of Arizona law to mislead the jury.

"The statute criminalizes only 'actual' control -- not 'potential' use," Judge Peter J. Eckerstrom wrote for the unanimous panel. "Indeed, many impaired adults have ready access to a vehicle, and therefore the potential use of one, but retain the sound judgment not to drive. Had the legislature intended to more broadly reach those impaired persons merely at risk to control a vehicle, we believe it would have inserted specific language so indicating.... the language it chose suggests it intended to punish actual behavior that creates a potential for harm."

In reversing the decision, the appeals court suggested Zaragoza should receive a new trial with the jury receiving revised instructions. The court acknowledged the difficulty of defining what actual "physical control" of a vehicle means and formulating appropriate jury instructions. The court made it clear that it believes drunk driving convictions should involve some driving.

"We believe the legislature intended to criminalize an impaired person's control of a vehicle when the circumstances of such control -- as actually physically exercised -- demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion," Eckerstrom concluded.

A copy of the ruling is available in a 105k PDF file at the source link below. Source
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