Dain Smoland, Attorney at Law PLLC
Criminal Defense in Utah
Dain Smoland, Attorney at Law PLLC
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← The Difference Between Driving Under the Influence and Impaired Driving in Utah
The Legality of Automobile Searches →

DUI without the D

May 6, 2013 | Filed under: DUI Laws, Traffic Laws and tagged with: DUI, Traffic Crimes, Utah State Law

Ok, you might think that if there’s one thing abundantly clear about the charge of Driving Under the Influence, it’s that, to be guilty, you must be 1) Driving, 2) Under, 3) the Influence. But you would be mistaken.

In Utah, you either have to be driving OR you have to have “actual physical control” of a vehicle (read the statute here). Of course, it’s less than obvious what “actual physical control” means. There’s lots of cases about it. In Richfield City v. Walker, the defendant was convicted for sleeping in his truck, drunk, with a blanket pulled over him. In another case, Garcia v. Schwendiman, the defendant was convicted for “trying” to start his car,despite the fact that he was blocked in by a telephone poll and a parked car, and so couldn’t have gone more than a few feet even if he did. The court said, in that case: “A person need not actually move, or attempt to move, a vehicle, but only needs to have an apparent ability to start and move the vehicle in order to be in actual physical control.”

So, are you in physical control when you have the keys in your pocket, and you’re standing on the porch gazing fondly at your car? Is that enough “apparent ability”? Are you in actual physical control when you’re sitting in the driver’s seat, but you can’t find your keys? What if they’re under the seat? Are you in actual physical control when you remember where they are, or only when you grab them off the floor? What if the battery is dead? What if you get in your neighbor’s car by mistake, and your key won’t fit the ignition? What if it is sitting on concrete blocks, with no engine? My point is it’s a bit fuzzy.

But you definitely don’t have to be driving.

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← The Difference Between Driving Under the Influence and Impaired Driving in Utah
The Legality of Automobile Searches →

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Some Posts from My Blog

  • Utah Legislature Temporarily Suspends Expungement Filing Fees!
  • Parolees Become Eligible for 402 Reductions in Utah
  • Utah’s “Clean Slate” Law, and Automatic Expungements
  • Utah Legalizes Medical Marijuana! Kinda! Sort Of!
  • Utah Eases Expungement Eligibility, Especially for Prior Drug Convictions!

Courts Where I Take Cases

I am licensed to practice criminal law anywhere in Utah, but my office is in Salt Lake City so I focus my defense practice on Salt Lake County and the surrounding counties: Weber, Davis, Utah, Summit, Wasatch, Tooele.

That includes any of the state, city, or federal courts located in Salt Lake City, West Jordan, South Jordan, West Valley, Heber, Park City, Provo, Ogden, Farmington, Bountiful, Holladay, Cottonwood Heights, Murray, Millcreek, South Salt Lake, Grantsville, Tooele, Orem, American Fork, Sandy, Draper, Centerville, Layton, Kaysville, and anywhere else within an hour's drive of Salt Lake. I'll also go down to Carbon County (Price and Helper), because I like that drive!

For locations in Utah outside that area, just contact me and we'll talk about it.

Categories of my blog posts

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