Alabama DUI Without Driving?

Posted on by DUI Attorney

When you hear DUI, what does it mean to you?  Most of us think of someone driving down the road while they are drunk, high on drugs , or both.  What you may not be aware of is that a person can be guilty of DUI in Alabama without ever driving or attempting to drive.  How could this be?  You can be found guilty of a DUI in Alabama without driving if a judge or jury find that you were in “actual physical control.”  So what does “actual physical control” mean?  Does the car have to be cranked?  Do you have to have your hand on the steering wheel?  What if you go out to a restaurant/bar parking lot to get your cell phone or wallet out of your car and sit in your car with your keys out digging through your console? What if a person realizes they are not safe to drive but decides to “sleep it off” in their car?

Unfortunately, the words of the DUI statute do not give us any guidance on what “actual physical control” means.  A couple of times over the years the Alabama Court of Criminal Appeals has tried, with limited success, to clarify what actual physical control means.  The first Alabama case to try to do this was  Key v. Town of Kinsey, 424 So. 2d 701 (Ala. Crim. App. 1982).  In the Key case the Alabama Court of Criminal Appeals held that three things had to be proven in order to show actual physical control:  (1) Active or constructive possession or the vehicle’s key or proof that the vehicle did not require a key; (2)  that the person was in the driver’s seat, behind the steering wheel, and in such a condition that, except for intoxication, he/she is physically capable of cranking the engine and causing the vehicle to move; and (3) that the vehicle is operable to some extent.  Four years later the Alabama Court of Criminal Appeals threw away the Key test (pun intended) in Cagle v. City of Gadsden, 495 So. 2d 1144 (Ala. 1986) and adopted a “totality of the circumstances” test.

Generally, when a court imposes a totality of the circumstances test it means three things: (1) “the language in the statute is as clear as mud,” (2) “we don’t know what it means either,” and (3) “we want to go play golf.”  In fairness to the court in Cagle, they did not completely throw out the Key test.  In establishing a “totality of the circumstances test” Cagle added the caveat that “[t]his is not to say that the factors which compose the test in the Key case are not to be considered when determining whether a person is guilty of driving under the influence, but that these are not the only factors to be considered.” Cagle, 495 So. 2d at 1147.

So what is the answer to all the questions in the first paragraph?  Unfortunately, under current Alabama law there is no easy answer.  In the words of the Alabama Court of Criminal Appeals, it depends on the totality of the circumstances.