State v. Zavala
In State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983), a patrolman had discovered the defendant parked in a truck off the highway, unconscious, hanging partially from the driver's side window, and with evidence of vomit on his mouth and shirt. Id. at 357, 666 P.2d at 457.
The truck engine was turned off, although the key remained in the ignition. Id. Upon being awakened, the defendant physically resisted the patrolman's attempt to speak with him, but did not attempt to start the truck. Id.
The state charged the defendant with violating A.R.S. 28-692(A) (now A.R.S. 28-1381(A)) by driving under the influence of intoxicating liquor, and a jury convicted him of the offense. Id.
The issue on appeal was whether the defendant was in actual physical control of the truck while intoxicated. Id. at 358, 666 P.2d at 458.
The supreme court held that the element of actual physical control is shown when a defendant has "the apparent ability to start and move the vehicle," and not when a defendant is "physically unable to start the car, as would be the case with an unconscious or sleeping motorist." Id. at 359, 666 P.2d at 459.
Because the defendant was not in actual physical control of the truck when discovered by the patrolman, the court held that the defendant could not be convicted of DUI on that basis. Id.