Q: Can I get DUI without actually driving my car? A: Yes, you can.

Driving under the influence without driving

Even though you may think that you can only get charged with DUI if you are actually driving, this is not true! You can actually be charged with DUI if you are in “actual physical control of a vehicle, ” meaning you can be charged with DUI even if you are just sitting (or even sleeping!) in the vehicle. (See Utah Code Section 41-6a-502).

When the Utah Supreme Court was faced with the question of what “actual physical control” means, the court ruled that the following factors can be considered:

  • Whether the defendant was sleeping when discovered;
  • The position of the vehicle;
  • Whether the vehicle’s motor was running;
  • Whether the defendant was in the driver’s seat;
  • Whether the defendant was the only person in the vehicle;
  • Whether the defendant had the keys to the vehicle;
  • Whether the defendant was able to start the vehicle;
  • How the vehicle got to where it was found; and
  • Whether the defendant drove it there. (Garcia v. Schwendiman, 645 P.2d 651 (Utah 1982)).

In a case decided eight years later, the Utah Court of Appeals held that even just sitting in a vehicle with the keys is enough to constitute “actual physical control.” In the court’s opinion, it cited to an earlier Utah Supreme Court case where an intoxicated driver, who was asleep at the wheel of an inoperable truck, was found guilty of DUI. (Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990)).

According to this line of cases, the prosecution does not have to prove that you were driving in order to get a conviction for DUI. Even just sitting in the driver’s seat of a vehicle with the keys is enough to convict.

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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