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Utah DUI Defense Attorney - "Actual Physical Control"

Utah DUI laws allow a person to be charged with DUI even if he or she is not actually driving a vehicle.  Under Utah's DUI statute, a person can be convicted if they are either "driving" or in "actual physical control" of a vehicle while intoxicated. If you are facing a DUI or DUI metabolite charge in Utah, it is important to have an experienced criminal defense attorney on your side. Based in Salt Lake City, criminal lawyer Stephen Howard provides legal services to clients throughout Utah. Contact us today to schedule an initial consultation.

Defining "Actual Physical Control" in Utah DUI Cases

Actual Physical Control - DUI Defense Lawyer - Salt Lake City, UtahThe term "actual physical control" has been interpreted broadly by Utah appellate courts. In the case of State v. Barnhart, 850 P.2d 473 (Utah Ct. App. 1993), the Utah Court of Appeals stated that the legislature "intended to prevent intoxicated persons from causing harm by apprehending them before they operate a vehicle."

The court continued in its opinion to hold that "a person need not actually move a vehicle, but only needs to have the apparent ability to start and move a vehicle in order to be in actual physical control." The court in Barnhart held that a jury must consider the totality of the circumstances in determining whether a person was in actual phyiscal control of a vehicle. But the court also restated a list of potential factors that a jury may consider, as previously set forth in the case of Richfield v. Walker, 790 P.2d 87 (Utah Ct. App. 1990). This list of factors includes:

  • whether the person is asleep or awake when found by police
  • whether the person was found in the driver's seat
  • whether the vehicle's engine was running
  • whether there was anyone else in the vehicle
  • whether the person had the ignition key
  • the person's apparent ability to start and move the vehicle
  • the position of the automobile
  • how the car got where it was found
  • whether the person drove it there

The court in Barnhart held that the person's "apparent ability to start and move the vehicle" was sufficient to support the jury's guilty verdict. This holding does not necessarily mean that a jury must find the defendant guilty merely because there was an aparent ability to start and move the vehicle. Utah's appellate courts have made it clear that this is not an exhaustive list, and no single factor is necessarily dispositive of the question as a matter of law. The jury may still consider the defendant's intent. If the totality of the circumstances indicates that, even though there was an apparent ability to start and move the vehicle, the defendant did not intend to do so, a jury may still find the defendant not guilty of DUI.

Penalties for Actual Phyiscal Control DUI in Utah

The consequences for a DUI conviction in Utah can be severe - regardless of whether the defendant was driving or only in "actual physical control" of the vehicle. The maximum penalties for a first-time DUI in a 10-year period can be as severe as 180 days in jail plus nearly two thousand dollars in fine and surcharge. The penalties for each subsequent DUI convictions increase. A third DUI conviction within a 10-year period can be charged as a third-degree felony with up to five years in jail and more than nine thosand dollars in fine and surcharge.

Finding an Experienced Utah Criminal Attorney in Salt Lake

Salt Lake DUI AttorneyIf you are facing prosecution for DUI or other criminal charges in Utah, an experienced criminal defense attorney can make all the difference. Stephen Howard has successfully protected his clients' rights in thousands of serious felony and misdemeanor cases.

Contact us now to schedule an initial consultation and case analysis with Salt Lake criminal lawyer Stephen Howard.


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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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