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Can I be charged with DUI in Utah if I am not driving?

Many people are surprised to learn that they may be convicted of drunk driving in Utah even if they have not been driving. Utah's drunk driving (DUI) statute prohibits "driving" a vehicle while impaired or under the influence of alcohol or drugs, but also prohibits being in "actual physical control" of a vehicle when impaired. Under the legal definition of "actual physical control," a prosecutor does not have to prove that you were driving the vehicle, or even that you were in the driver's seat.

If you have been charged with DUI or other crimes in Utah, having an experienced criminal attorney on your side can be critical to developing the best defense strategy. Based in Salt Lake City, criminal defense lawyer Stephen Howard offers DUI and criminal defense services to clients throughout Utah. Contact us today to arrange for an initial confidential consultation.

Actual Physical Control in Utah DUI Cases

Salt Lake DUI Defense LawyerUtah appellate courts have determined that the an important legislature purpose in enacting DUI legislation is to prevent intoxicated persons from causing harm. Utah's DUI statutes contain provisions that prohibit both "driving" and being in "actual physical control" of a vehcile while intoxicated. The courts have interpretted this DUI legislation as allowing a police officer to apprehend potential drunk drivers before they begin driving, or even before the key is placed in the vehicle ignition  Under one Utah Court of Appeals decision, a person need only "have an apparent ability to start and move a vehicle in order to be in actual physical control."  State v. Barnhart, 850 P.2d 473 (Utah Ct. App. 1993). Utah's appellate courts have given a list of potential factors to consider, including the following:

  • whether the person was sitting in the driver's seat
  • whether the person was sleeping or awake when observed
  • whether there was anyone else in the vehicle who could have been in control of the vehicle
  • whether the engine of the vehicle was started or running
  • whether the keys to the vehicle were present or in the ignition
  • whether it appeared that the person was able to start and move the vehicle
  • the location and position of the vehicle
  • how the car got there
  • who drove the vehicle to the place where it was found

In addition to the factors that have been recognized as relevant by the appellate courts, a jury can also consider any other relevant factors in determining whether a person was in actual physical control.

Whether the defendant is determined to have actually been driving the vehicle or only in actual physical control, the penalties for a DUI conviction can be the same - including jail time and substantial fines. Having the assistance of an experienced defense attorney is important.

Finding a Criminal Defense Attorney in Utah

Salt Lake Criminal Defense LawyerIf you are being accused or prosecuted for DUI or other criminal charges in Utah, an experienced criminal defense attorney can make all the difference. Based in Salt Lake City, criminal lawyer Stephen Howard has achieved not guilty verdicts and dismissals in a wide range of criminal cases, including DUI as well as some of the most serious felony charges on the books in Utah.

Contact Salt Lake City criminal defense attorney Stephen Howard to arrange for an initial confidential consultation.


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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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