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Elements of a Nevada DUI - Actual Physical Control

Elements of a Nevada DUI - Actual Physical Control of a Vehicle

In Nevada, actual physical control of a vehicle is a necessary element to prove a DUI. It is not illegal to be under the influence at a park or while tailgating. It only becomes illegal if you are exercising physical control over the vehicle. This sounds intuitive, but some fascinating cases have arisen over what it means to be in actual physical control of a car. A few examples:

  • Jon was driving under the influence and blew a tire. He pulled over, turned the car off, and began changing the tire. An officer arrived and smelled alcohol on his breath. 
  • Suzy went to the bar on a Friday night after a hard week at work. She drank a little too much and decided to sleep off the alcohol in her car. It was cold outside, so she turned the car on and went to sleep in the driver's seat. The police arrived and found her in the driver's seat, smelling heavily of alcohol with the car running.
  • Mark was at the park with his friends having a party. He had consumed several beers and went to his car to play some music. He turned his car on from the passenger seat and began playing his music. The police were called, and Mark was found in the passenger seat with the vehicle on, smelling of alcohol.

An intuitive answer to all of them is no. However, in Nevada, a statute defines what actual physical control of a car is. That law was based on a Nevada Supreme Court decision that delved into what actual physical control of a vehicle is. We'll go chronologically and look at what the Nevada Supreme Court said, then take a look at what the statute defines as actual physical control in Nevada. Finally, we'll look at the examples and determine if any of the examples would have resulted in a DUI in Nevada.

Actual Physical Control - Nevada Supreme Court

Before any statute on actual physical control, the Nevada Supreme Court was left with defining the term. The seminal case in Nevada DUI law is Rogers v. State, a case from 1989.

In Rogers, a driver was pulled over on the freeway, sleeping in their car. The car was running, partially in the roadway, with Rogers asleep behind the wheel. When the police woke him up, he stated that he was going home. He shut the door and attempted to, unsuccessfully, drive away. He was later arrested and convicted for a DUI Third Offense. He appealed, stating he was not in actual physical control. The Nevada Supreme Court disagreed. In doing so, they created several considerations to determine actual physical control:

...we conclude that a person is in actual physical control when the person has existing or present bodily restraint, directing influence, domination, or regulation of the vehicle. In deciding whether someone has existing or present bodily restraint, directing influence, domination, or regulation of a vehicle, the trier of fact must weigh a number of considerations, including where, and in what position, the person is found in the vehicle; whether the vehicle's engine is running or not; whether the occupant is awake or asleep; whether, if the person is apprehended at night, the vehicle's lights are on; the location of the vehicle's keys; whether the person was trying to move the vehicle or moved the vehicle; whether the property on which the vehicle is located is public or private; and whether the person must, of necessity, have driven to the location where apprehended.

The Nevada Supreme Court's justification for its ruling was to provide several factors so that a jury could apply them to a given situation and decide for themselves if the person was in actual physical control. The Nevada Supreme Court gave two examples:

  • No Actual Physical Control: The Nevada Supreme Court stated that an individual who was drinking at a bar, came outside, and fell asleep in the backseat of the car would not have actual physical control of their vehicle. In fact, in this hypothetical, every factor weighs in favor of no actual physical control.
  • Physical Control: In contrast, the Nevada Supreme Court chose an exciting example to show actual physical control. An individual who is driving drunk and pulls over to change a tire is then stopped by officers. In that instance, there would be actual physical control because he must have driven there impaired, and he was taking actions that constituted exercising control over the vehicle.

The Nevada Supreme Court's Rogers factors were left entirely untouched and defined what actual physical control for a Nevada DUI meant up until the legislature codified those factors. However, about a month after Rogers, the Nevada Supreme Court did address the policy implications of Rogers

Isom v. State briefly explored the policy decisions that dealt with the actual physical control of a vehicle and whether a driver that is too intoxicated and willingly pulls themselves off the road to sleep it off should be held accountable for a Nevada DUI. In Isomthe vehicle driver was found passed out, slumped over in the passenger seat. The car was running; the lights were off. When the officer woke up the driver, they attempted to drive home. In the car were several beer cans, and the driver was intoxicated. They were found guilty of a Nevada DUI Third Offense and appealed the decision.

The Nevada Supreme Court upheld the conviction but briefly discussed the policy decisions of "actual physical control." Specifically, they identified two policies: 

  1. No Tolerance: Driving while impaired is such a danger to other motorists that nobody should even think about getting behind the wheel when they have drunk some alcohol.
  2. Responsible Citizen: When responsible citizens realize that they are impaired and attempt to pull over to sleep off the impairment, they should not be harassed or held liable. 

Both are reasonable policies. However, the Nevada Supreme Court could find no suggestion in the law that lenient treatment of those who do pull off the road is warranted. So, rather than stating a policy preference, they punted to the legislature:

Any change or modification of the existing policy in favor of more lenient treatment for intoxicated motorists who voluntarily pull off the roads and highways prior to coming under the scrutiny of law enforcement authorities should be addressed by the legislature.

The legislature opted not to touch the law concerning actual physical control until the 2014 legislative session; when they did, there did not appear to be any policy considerations.

Actual Physical Control - The Legislature

Isom was decided in 1989, but it was not until 2014 that the Nevada Legislature finally decided to take up actual physical control and codify it. That law is now in the Nevada Revised Statutes (NRS) chapter 484C (DUI). NRS 484C.109 states:

For the purposes of this chapter, a person shall be deemed not to be in actual physical control of a vehicle if:
1. The person is asleep inside the vehicle;
2. The person is not in the driver's seat of the vehicle;
3. The engine of the vehicle is not running;
4. The vehicle is lawfully parked; and
5. Under the facts presented, it is evident that the person could not have driven the vehicle to the location while under the influence of intoxicating liquor, a controlled substance or a prohibited substance.

This statute is a little wonky. Specifically, the use of "and" in section 4 muddles the meaning a bit. Or maybe it doesn't, and that is what the legislature meant, and a whole range of activities not before thought to have been a DUI are now DUIs. That is because of how "and" works in our language.

The word "and" is used to connect sentences that are to be taken jointly. That means that sections one through five together are when somebody is NOT in actual physical control of a car for a Nevada DUI. The result is the following situations would ALL be deemed a Nevada DUI:

  • Sitting on the tailgate of a truck that is on while under the influence;
  • Sitting in the driver's seat of a car asleep with the car off and no keys;
  • Sleeping in the back seat of a car with the engine running to keep warm or cool;
  • A driver in the back seat of a car with the engine off but double-parked

This statute creates a rigid standard and criminalizes a section of behavior that an average person would not consider a DUI in Nevada. It is also in stark contrast to the Nevada Supreme Court's holistic approach, where several factors were to be considered to determine actual physical control of a car for a Nevada DUI.

There is also the possibility that the legislature meant to codify the decision of Rogers. This is a common practice used by legislatures if one of their laws is unclear and a Supreme Court clarifies the meaning. If the legislature finds it in accord with their intent, they can codify it. If they find it is contrary to their purpose, they can overrule the Supreme Court and clarify their meaning.   However, this law was not written until 15 years after the Rogers decision. Additionally, several of the Rogers factors are not present, such as the location of the keys and an attempt to move the vehicle. The most likely intent with this law was to make it easier to prove actual physical control of a vehicle for prosecutors, trusting in their discretion to charge a Nevada DUI rather than trust in a jury to make that decision.

Actual Physical Control - What's the Answer?

We now return to the examples at the beginning. We will take a look at them and determine if there was actual physical control. Recall, these are the examples:

  • Jon was driving under the influence and blew a tire. He pulled over, turned the car off, and began changing the tire. An officer arrived and smelled alcohol on his breath. 
  • Suzy went to the bar on a Friday night after a hard week at work. She drank a little too much and decided to sleep off the alcohol in her car. It was cold outside, so she turned the car on and went to sleep in the driver's seat. The police arrived and found her in the driver's seat, smelling heavily of alcohol with the car running.
  • Mark was at the park with his friends having a party. He had consumed several beers and went to his car to play some music. He turned his car on from the passenger seat and began playing his music. The police were called, and Mark was found in the passenger seat with the car on, smelling of alcohol.

We can go through each of them and apply both the statute and the Rogers factors. Here are the examples:

  • Jon will be deemed to be in actual physical control. This is true under both the Rogers case and NRS 484C.109. Rogers used this very example to define actual physical control and section 5 of NRS 484C.109 explicitly states this is actual physical control.
  • Suzy would be deemed to be in actual physical control according to NRS 484C.109, but probably not according to the Rogers standards. Under NRS 484C.109, she is in the passenger's seat, and the car is on. Under Rogers, there is no attempt to move the vehicle, she is asleep, and she clearly could have driven to the bar sober. 
  • Mark would be deemed to be in physical control under NRS 484C.109, but not under Rogers. Of course, this all assumes that NRS 484C.109 is to be read as all factors together, as his car is on, and that is one of the factors listed. Rogers probably would see no actual physical control, as the car running is the only factor supporting actual physical control.

There is a large amount of behavior that Rogers would not criminalize that NS 484C.109 does. To date, NRS 484C.109 has not been interpreted by the Nevada Supreme Court, and they have not substantively revisited Nevada's actual physical control standard for some time. This is exactly why if you are charged with a DUI in Nevada, a Nevada DUI lawyer is necessary. 

A DUI Lawyer is Necessary

Whenever the issue of actual physical control comes up, a DUI Lawyer is necessary. Charles Goodwin, a Nevada DUI Defense Lawyer, can help. Here's why:

  • Complexity: Many factors go into determining when there is actual physical control of a vehicle. Based on the case, which factors should be pushed on and which ones should be minimized are sometimes not so clear. Charles Goodwin, as a DUI attorney in Nevada, knows when to push which factors.
  • Knowledge: lawyers not trained to handle DUIs will often not spot issues with actual physical control. They will more often than not cave when the prosecutor stands firm on a Nevada DUI conviction. Don't let that be you! DUI Attorney Charles Goodwin understands DUIs and actual physical control of a vehicle and can help.
  • Experience: Many lawyers who do not handle DUIs regularly may be unaware of the complexities that go into determining the actual physical control of a vehicle in Nevada. DUI Defense lawyer Charles Goodwin has resolved hundreds of DUIs, is a member of the National College of DUI Defense and has practiced in all courts in Southern Nevada. He can help you.

Contact Charles Goodwin at Goodwin Law Group, PLLC today. He has the knowledge and experience to navigate your DUI offense's complexity and help you decide how to proceed when facing a DUI Offense. Call today for your free consultation!

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