DUI in Alabama
Enforcement of Alabama's DUI law: What is actual physical control?
By Marci S. Johns, Attorney at Law
To successfully prevail in the prosecution of driving while under the influence of alcohol under Section 32-5A-191 (a)(2), Code of Alabama, 1975, the state must prove beyond a reasonable doubt that the defendant drove or was in actual physical control of a motor vehicle while the defendant was under the influence of alcohol to the extent that it affected the defendant's ability to operate his vehicle in a safe manner. Ex parte Buckner, 549 So.2d 451, 453 (Ala. 1989); Frazier v. City of Montgomery, 565 So.2d 1255, 1257 (Ala.Cr.App. 1990). A conviction is certainly more attainable when there is direct evidence of the defendant's driving the vehicle while under the influence of alcohol. Direct evidence usually consists of the law enforcement officer's testimony that he actually witnessed the defendant operating the vehicle while under the influence of alcohol. However, the challenge for many law enforcement officers and for prosecutors arises when the defendant is not actually witnessed driving the motor vehicle. In order to prevent these circumstances from barring a successful DUI conviction, law enforcement officers must understand the interpretation and components of actual physical control and be particularly observant in their initial contact with the defendant.
Fortunately, circumstantial evidence is sufficient to sustain a conviction for DUI. McLaney v. City of Montgomery, 570 So.2d 881 (Ala.Cr.App. 1990). This rule of law is particularly helpful in proving that a defendant was in actual physical control of the vehicle. In proving a case based on circumstantial evidence, it must be determined whether the evidence is consistent with the defendant's guilt, or rather consistent with some reasonable explanation suggesting the defendant's innocence. Davis v. State, 505 So.2d 1303, 1305-1306 (Ala.Cr.App. 1987). The admittance of circumstantial evidence, which is consistent with the defendant's guilt, allows the state to indirectly prove that the defendant was in actual physical control of the vehicle while under the influence of alcohol. Additionally, in Barnett v. State, 671 So.2d 135 (Ala.Cr.App. 1995), the Alabama Court of Criminal Appeals affirmed a DUI conviction based on circumstantial evidence and clarified the actual physical control requirement. In Barnett, the defendant was found by the arresting officer in the driver's seat of the car. Circumstantial evidence such as the fact that the defendant was sitting in the driver's seat of his car, the proximate location of the keys, and the fact that the car was warm was sufficient evidence to find that the defendant was in actual physical control of the vehicle. The Alabama Court of Criminal Appeals explained:
“It is not necessary to be actually driving in order to be in actual physical control' of a vehicle. Sloan v. State, 574 So.2d 975, 978 (Ala.Cr.App. 1990). `Actual physical control' is exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of the motor vehicle at the moment. Cagle v. City of Montgomery, 495 So.2d 1144,1145 (Ala. 1986). Whether one is in `actual physical control' of a vehicle is determined by a totality-of-the-circumstances test. Cagle, 495 So.2d at 1145.” Barnett, 671 at 137. See also Farley v. City of Montgomery, 677 So.2d 1251, 1252-1253 (Ala.Cr.App. 1995).
The “totality-of -the-circumstances test” referred to by the Court of Criminal Appeals simply means that all of the circumstances in a case are considered. In other words, all of the direct and circumstantial in a DUI case will be examined.
It is quite clear that the prosecution of a defendant charged with DUI can be successful, regardless of whether the defendant was actually witnessed driving the vehicle. The Alabama Court of Criminal Appeals has interpreted the actual physical control requirement to signify that it is not required that the defendant actually drive the vehicle in order to be in actual physical control. Consequently, it is important that the arresting officer be very observant at the time of the arrest in cases in which there is no direct evidence of the defendant's actual driving while under the influence of alcohol. Although the arresting officer may be quite certain that the defendant is so intoxicated so as to affect his ability to drive his vehicle in a safe manner, the officer must remember that his finding at the time of the arrest must later be proven beyond a reasonable doubt. Circumstantial evidence consistent with the defendant's guilt such as the condition of the defendant and the vehicle and the location of the defendant and the keys will certainly aid in the prosecution.
With increased officer awareness of all circumstantial evidence consistent with the defendant's guilt at the time of the arrest, it is very likely and reasonable that a trier of fact will conclude that the defendant was in actual physical control of the vehicle while under the influence of alcohol. The result will be successful DUI convictions and safer streets for Alabama's citizens.