DUI: Actual Physical Control in Oklahoma
In Oklahoma, you don’t necessarily have to be “driving” a car to be arrested for driving under the influence. The term “actual physical control” is taken from the Oklahoma DUI statute, which makes it a crime for a person to be in actual physical control of a motor vehicle while under the influence of alcohol (>.08 BAC) or drugs. The courts reason the legislature broadened the DUI statute to include “actual physical control” in an attempt to allow a drunken driver to be apprehended before he strikes because an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public.
You may ask, what does a person have to do to be in actual physical control of a vehicle? The answer is not crystal clear, and because the term was not defined in the statute, the Oklahoma courts have adopted the ordinary dictionary meaning of the words “actual”, “physical”, and “control”; “the existing or present bodily restraint, directing influence, domination or regulation, of an automobile”. While that definition seems to create more questions than it answers, it provides a general framework by which the courts have been able to determine whether the individual was in actual physical control by the circumstantial evidence.
If a person is sitting behind the wheel of a car with the engine running, it’s easier to say the person is in actual physical control of the vehicle. However, if that same car is parked at a business while the owner sleeps in the back seat, with only the key in the on position to play the car radio, it is not as easy to say the person is in “control” of the vehicle.
The courts have noted that intoxicated occupants of motor vehicles do not have to be awake or conscious to be in actual physical control, if they are found behind the wheel with the keys in the ignition, whether or not the engine is running. The fact that the individual places his/herself behind the wheel of a vehicle when they are under the influence of alcohol is sufficient circumstantial evidence to support the conclusion that they either have been driving while intoxicated, or can be awakened at any moment and drive. Additionally, a defendant located in the driver’s seat of a vehicle may be found to be in APC even though intent was temporarily lacking because the driver happened to be asleep or unconscious.
If you have been charged with Actual Physical Control in Oklahoma, or have questions about Actual Physical Control in Oklahoma, call our office at (918)994-2340 to speak with one of our Tulsa DUI attorneys regarding your specific facts and circumstances. Our Tulsa criminal defense attorney offers free consultations, and we have payment plans available.
 Hughes v. State, 1975 OK CR 83.
 Parker v. State, 1967 OK CR 7.
 Wafford v. State, 1987 OK CR 148; Hughes v. State, 535 P.2d 1023 (1975 Okla. Crim. App)
 DPS v. Kelley, 172 P.3d 231 (2007 OK Civ. App.) summarizing other cases.
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