Different state laws address the issue of actual “driving” vs “actual physical control” of the vehicle. Nearly every state has case law saying that circumstantial evidence in this scenario is sufficient to support a DUI.

DUI-DWI statutes employ a variety of terms to describe the prohibited vehicular activities.[1]

Under some DUI-DWI statutes it is illegal to "drive" a vehicle while intoxicated, while under other statutes it is illegal to "operate" a vehicle while intoxicated. Some statutes combine the terms in their statutes using disjunctive language and make "driving or operating" the prohibited activity. Occasionally a DUI-DWI statute will also include the term "attempt to operate "or" attempt to drive" as a prohibited vehicular activity.

In the states that follow the Uniform Vehicle Code, the prohibited vehicular activity is the "actual physical control" of a vehicle. In many states this activity is combined disjunctively with one or more other prohibited activities such as "driving" or "operating." In a few states the prohibited vehicular activity is the "physical control" of a vehicle, as opposed to "actual physical control." Some DUI-DWI statutes that use the term "drive" or "operate" as the prohibited vehicular activity define the term "driving" or "operating" to include actual physical control of a vehicle

Of the terms used to describe a prohibited vehicular activity, “actual physical control” is the most comprehensive wording used and the most inclusive. While some courts use the terms "operate" and "actual physical control" interchangeably, the term "operate" is usually less inclusive than the term "actual physical control," but broader and more inclusive than the term "driving," which is the narrowest and least inclusive of the commonly-used terms.[2] It is possible, for example, to have actual physical control of a vehicle while neither operating nor driving it.[3] Similarly, it is possible to operate a vehicle without driving it.[4]

The traditional definition of "driving" usually included a requirement that the vehicle be in motion.[5] The vehicle's motion, however, need not come from its engine. Sitting behind the wheel of a coasting vehicle whose engine is not running may constitute a "driving" of the vehicle, even if the keys are not in the ignition.[6] Similarly, the steering of a vehicle that is being pushed or towed may constitute a "driving" of the vehicle for purposes of a DUI-DWI statute.[7] The vehicle's motion must be the result of an intentional act of the defendant, however, and not the result of an accidental or unintentional event. Thus, the accidental depressing of the vehicle's clutch by an intoxicated but sleeping defendant, causing the vehicle to move was held not to constitute "driving" of the vehicle for purposes of a DUI-DWI statute.[8]

The statutory definition of "driving" is usually broader and more inclusive than the common law definition. Accordingly, several courts in applying a statutory definition of "driving" have held that direct evidence of vehicular motion is not a necessary element of "driving," especially if the vehicle's engine is running.[9]

The common law definition of "operation" usually includes the actual physical handling or manipulation of the electrical or mechanical controls of a motor vehicle, including the starting of the vehicle's engine.[10] A vehicle does not have to be in motion to be operated.[11] However, evidence must be present that the defendant exercised some control or manipulation over the vehicle, such as steering or braking, even if the vehicle is in motion. Evidence that the defendant was inside a moving but non-running vehicle, without more, does not constitute sufficient evidence of "operating" the vehicle.[12] However, it has been held that grabbing the steering wheel and stepping on the accelerator of a vehicle constitutes "operating" the vehicle even if another person is driving the vehicle.[13]

The "operation" of a vehicle requires the showing of intent by the defendant to set the vehicle in motion.[14] The starting of the vehicle's engine usually constitutes the showing of such intent and a person found alone in a non-moving vehicle whose engine is running is usually held to be "operating" the vehicle, even if the person was found asleep or unconscious.[15] Even if a vehicle whose engine is running is temporarily disabled or stuck in mud or snow, the person found behind the wheel may nevertheless be found to be "operating" the vehicle.[16]

Some courts, it should be noted, have held that a person found asleep behind the wheel of a non-moving vehicle whose engine was running was not "operating" the vehicle for purposes of a DUI-DWI statute.[17] In most cases of this sort the defendant's vehicle was found parked in a parking lot or similar area and not on or next to the highway, thus lessening both the inference that the defendant recently drove the vehicle and the intent to set the vehicle in motion.[18] A defendant found asleep behind the wheel of a vehicle whose engine was not running but whose key was in the ignition and turned to the "on" position, was held not to be "operating" the vehicle.[19] See also http://www.duiblog.com/2005/04/18#a143.

Under many DUI-DWI statutes it is illegal to be in or have "actual physical control" of a vehicle while intoxicated. "Actual physical control" of a vehicle by a person is generally held to exist when the person is in a position to exercise influence, domination, or regulation over the vehicle.[20] "Actual physical control" does not require the vehicle to be in motion or its engine to be running: it need only be shown that the defendant had an immediate potential to operate the vehicle.[21]

To be in "actual physical control" of a vehicle, the defendant must normally be found inside the vehicle.[22] However, a defendant standing near the open trunk of a vehicle whose engine was running and that had a flat tire was held to be in physical control of the vehicle for purposes of a DUI-DWI statute.[23]

If it is shown that the defendant was inside a non-running vehicle, the location of the defendant inside the vehicle and location of the ignition keys are important issues. If the defendant was found behind the wheel and if the ignition keys were either in the ignition or in the actual or constructive possession of the defendant, a finding of "actual physical control" over the vehicle is likely to be upheld, even if one or more other acts (such as the fastening of a seat belt) had to be performed before the vehicle's engine could be started.[24]

The fact that the defendant was found asleep or unconscious does not prevent a finding of "actual physical control" if the defendant was found inside the vehicle and if the ignition keys were either in the ignition or in the possession of the defendant.[25] Courts following this line of cases frequently cite a legislative intent to apprehend drunk drivers before they can strike.[26]

Some courts, however, have refused to follow this approach. In several reported cases a finding of "actual physical control" was reversed where the defendant was found asleep or unconscious inside a non-running vehicle parked off the highway and where the ignition key was either disengaged or in the "off" position.[27] In such cases the courts often state that it is not feasible for an unconscious defendant to have actual physical control of a vehicle. The appellate courts cite a legislative intent to encourage drinking drivers to pull off the road until they are sober.

The fact that a vehicle was temporarily immobile because it was stuck in mud or snow is insufficient to prevent a finding of "actual physical control."[28] Further, a finding of "actual physical control" has been upheld where the vehicle was out of gas or otherwise temporarily inoperable.[29] However, proof that the vehicle could not have been operated under any reasonable circumstance has been held to be a defense to the establishment of "actual physical control."[30] This defense must be raised by the accused driver, however, as the prosecution does not have to prove that the defendant's vehicle was operable to establish "actual physical control."[31] Each state’s rules of criminal procedure control how this is done.

In a few states the operative term in the DUI-DWI statute is "physical control" of a vehicle, as opposed to "actual physical control." While the terms are similarly construed in most instances, it has been held that the term "physical control" is broader and more encompassing than the term "actual physical control."[32] Thus, an intoxicated person sitting in the right front passenger seat of a vehicle who reached over and stepped on the accelerator pedal was held to be in "physical control" of the vehicle for purposes of a DUI-DWI statute, even though the vehicle was being driven by another person.[33]

Regardless of the type of statute in a particular state, there must be some credible evidence that the defendant "operated" (or "had actual physical control of," etc.) a vehicle in order to sustain a DUI-DWI conviction. A DUI-DWI conviction was reversed on the grounds of insufficient evidence of operating the vehicle where it was shown that the officer investigating a one-car accident did not observe the defendant operating the vehicle and the defendant's admission of driving was suppressed because the officer failed to give the defendant a Miranda warning prior to questioning him about driving.[34] Insufficient evidence of actual physical control was found to exist where the defendant was found by police seated in the vehicle with the engine not running and where it was claimed that the defendant's girl friend had been driving the vehicle at the time of the accident.[35]

A few states go even further to prosecute people who are drunk and ACT like they may try to drive. These states also have a separate crime of “attempted” DUI-DWI.[36] Other states have ruled that there is no such crime possible.[37]






[1]J. Pearson, WHAT CONSTITUTES DRIVING, OPERATING, OR BEING IN CONTROL OF MOTOR VEHICLE FOR PURPOSES OF DRIVING WHILE INTOXICATED STATUTE OR ORDINANCE, 93 A.L.R.3d 7 (1979 - 2005).

[2]State v. Wiles, 26 S.W.3d 436 (Mo. App. 2000); State v. Jones 752 A.2d 1169, 714 So.2d 819 (La. App. 1998).

[3]State v. Thurston, 84 S.W.2d 536 (Mo.App. 2002); Bodner v. State, 752 A.2d 1169 (Del. Supr. 2000).

[4]Ferguson v. State, 198 Miss. 825, 23 So.2d 687 (1945); McDuell v. State, 231 A.2d 265 (Del., 1967); For an in-depth discussion of this subject, see Annotation: What Constitutes Driving, Operating, or Being in Control of a Motor Vehicle for Purposes of Driving While Intoxicated Statutes, 93 A.L.R.3d 7 (1979 - 2005)..

[5]State v. Johnson, 130 N.M. 6, 15 P.3d 1233 (2000); People v. Swain, 959 P.2d 426 (Colo. 1998).

[6]State v. Fisher, 57 Or. App. 776, 646 P.2d 652 (1982).

[7]State v. Thomas, 28 Kan. App. 2d 655, 20 P.3d 82 (2001); Williams v. State, 884 P.2d 167 (Alaska 1994).

[8]People v. Edwards, 158 Misc. 2d 615, 601 N.Y.S.2d 539 (1993).

[9]Johnson v. State, 194 Ga. App. 501, 391 S.E.2d 132 (1990); Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986); State v. Fields, 77 N.C.App. 404, 335 S.E.2d 69 (1985).

[10]State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969); McDuell v. State, 231 A.2d 265 (Del., 1967).

[11]State v. Wymbs, 10 Ohio Misc.2d 26, 462 N.E.2d 195 (1984); State v. Morris, 262 N.J. Super. 413, 621 A.2d 74 (1993).

[12]State v. Rossi, 734 So.2d 102 (La. App. 1999); State v. Brister, 514 So.2d 205 (La. App. 1987).

[13]State v. Cruz, 121 Or. App. 241, 855 P.2d 191 (1993).

[14]Prudhomme v. Hults, 27 A.D.2d 234, 278 N.Y.S.2d 67 (1967); State v. Mulcahy, 107 N.J. 467, 527 A.2d 368 (1987).

[15]Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005); Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514 (2003); Villalobos v. Zolin, 35 Cal. App. 4th 556, 41 Cal. Rptr. 2d 207 (1995).

[16]People v. David "W", 83 A.D.2d 690, 442 N.Y.S.2d 278 (1981); State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969).

[17]Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986).

[18]City of Whitefish v. Large, 318 Mont. 310, 80 P.3d 427 (2003); State v. Telakowitz, 61 Ohio Misc. 2d 499, 580 N.E.2d 101 (1991).

[19]Harris v. Commonwealth, 709 S.W.2d 846 (Ky. App. 1986).

[20]State v. Robison, 281 Mont. 64, 931 P.2d 706 (1997); State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971); State v. Duemke, 352 N.W.2d 427 (Minn. App. 1984).

[21]State v. Kelton, 168 Vt. 629, 724 A.2d 452 (1998).

[22]Bearden v. State, 430 P.2d 844 (Okla. Crim. App., 1967); Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984).

[23]State v. Woodward, 408 N.W.2d 927 (Minn. App., 1987).

[24]Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d 85 (1976); LaBeau v. Commissioner, 412 N.W.2d 777 (Minn. App., 1987); Petersen v. Dept. of Public Safety, 373 N.W.2d 38 (S.D., 1985).

[25]State v. Dawley, 201 Ariz. 285, 34 P.3d 394 (2001); Commonwealth v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995); State v. Williams, 752 S.W.2d 454 (Mo. App. 1988); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Adams v. State, 697 P.2d 622 (Wyo. 1985); Hughes v. State, 535 P.2d 1023 (Okla. Crim. App. 1975).

[26]State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984).

[27]State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971); State v. Pazderski, 352 N.W.2d 85 (Minn. App., 1984); Roberts v. Commissioner, 371 N.W.2d 605 (Minn. App., 1985).

[28]State v. Hendricks, 586 N.W.2d 413 (Minn. App. 1998); Lathan v. State, 707 P.2d 941 (Alaska App., 1985)

[29]State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984).

[30]Jones v. State, 510 So.2d 1147 (Fla. App., 1987).

[31]Toledo v. Voyles, 14 Ohio App.3d 419, 471 N.E.2d 823 (1984); Crane v. State, 461 P.2d 986 (Okla. Crim. App., 1969).

[32]State v. Juncewski, 308 N.W.2d 316 (Minn., 1981).

[33]Ives v. Commissioner, 375 N.W.2d 565 (Minn. App. 1985).

[34]Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992).

[35]Commonwealth v. Price, 416 Pa. Super. 23, 610 A.2d 488 (1992).

[36]Kansas: State v. Kendall, 55 P.3d 660 (Kan. 2002); Maine: [Me. Rev. Stat. Ann. Tit. 29 § 1312]; New Hampshire: [ N.H. Rev. Stat. Ann. § 265.82]; Vermont: [Vt. Stat. Ann. Tit. 23, § 1201]; Maryland: [Md. Transp. Code Ann. § 8-1567]. Other states have ruled that there is no such crime possible. Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002); People v. Prescott, 722 N.Y.S.2d 1334 (1997).

[37]Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002); People v. Prescott, 722 N.Y.S.2d 1334 (1997).