I was listening to Dave & Mahoney on X107.5 a week or so ago and a caller stated that his father was convicted of DUI for simply “walking down the street while being drunk.” The caller was specific that it was a DUI conviction, not drunk and disorderly, public intoxication or some other comparable conviction. The caller was also very adamant that his father had not been driving. Dave & Mahoney were skeptical but then another caller called in and reported that he also knew somebody that had been convicted of DUI in Las Vegas that had not been driving. The confusion sent Dave & Mahoney into one of their Quentin Tarantino-esque arguments that we all tune in to listen to.
The foregoing reports are absolutely false. I was going to call in and contribute but I was in the Starbuck’s line, blah, blah, blah… However, I felt compelled to respond and educate Las Vegas’ residents.
Nevada’s DUI law, in pertinent part, provides that it is unlawful for a person, who is under the influence of alcohol or a controlled/prohibited substance “to drive or be in actual physical control of a vehicle . . .” There are therefore two scenarios where a person can be convicted of DUI. Scenario number one, where the person:
(1) is under the influence of alcohol or a controlled substance and “drive[s] . . . a vehicle . . .” and
scenario number two, where the person:
(2) is under the influence of alcohol or a controlled substance and is in “actual physical control of a vehicle . . .”
Please pay particular attention to the fact that there is no language in Nevada’s DUI law that criminalizes being drunk “while walking down the street.” Your next question should be “what does being in actual physical control of a vehicle mean?” The answer is highly fact dependent and is analyzed by using a number of judicially created factors. The Nevada Supreme Court has defined “actual physical control” of a vehicle as:
when the person has existing or present bodily restraint, directing influence, domination, or regulation of the vehicle . . .
So . . . after that definition, I am guessing that your next question is still “what does being in actual physical control of a vehicle mean?” Fortunately, the Nevada Supreme Court has set forth a number of factors to consider in determining whether a person is in “actual physical control” of a motor vehicle:
(1) where, and in what position, the person is found in the vehicle;
(2) whether the vehicle’s engine is running or not;
(3) whether the occupant is awake or asleep;
(4) whether, if the person is apprehended at night, the vehicle’s lights are on;
(5) the location of the vehicle’s keys;
(6) whether the person was trying to move the vehicle or moved the vehicle;
(7) whether the property on which the vehicle is located is public or private; and
(8) whether the person must, of necessity, have driven to the location where apprehended.
The balancing of these factors is left to the discretion of the trier of fact on a case-by-case basis. The interpreting caselaw reveals that the Court focuses not only on your ability to drive off, but also the circumstances surrounding how you arrived at the location. Thus, the question as to whether you are in “actual physical control” of a vehicle will ultimately turn on consideration of a number of factors. However, circling back to the X107.5 callers, you absolutely cannot be convicted of DUI for being drunk while walking down the street. Somebody that is walking down the street is CLEARLY neither “driving . . . a vehicle” nor in “actual physical control of a vehicle.” The callers were either completely full of sh**, or were ignorant to/did not disclose relevant facts. I have many DUI clients that were arrested walking down the street. However, there is always a witness that observed them driving, wreck and/or park the vehicle moments before the arrest.