As is the case with every criminal offense, the State has the burden of establishing beyond a reasonable doubt every element of a criminal offense. The first element in a DUI case is that the defendant was either (1) driving; or (2) in physical control.
Often times, people believe that you must be driving a motor vehicle to be arrested for DUI but that is not necessarily true. The state may convict you of DUI with proof that you were in physical control of the vehicle. To determine whether you were in physical control, Courts look at the “totality of the circumstances” in based on five factors:
- the location of the defendant in relation to the vehicle;
- the location of the ignition key;
- whether the vehicle was running;
- defendant’s ability to physically use the vehicle; and
- the extent to which the vehicle is capable of being operated or moved.
Your lawyer should evaluate each of the five (5) factors to determine whether they may file a motion to dismiss your case based on you not being in physical control of the vehicle. This is similarly a potential argument for the jury to argue that you were not in physical control. However, an experienced DUI lawyer would argue for a dismissal at a preliminary hearing in general sessions court and/or use the testimony from the preliminary hearing to file a motion to dismiss in criminal court prior to a jury trial.
Unfortunately, the five (5) factors are extremely state friendly whereas Tennessee courts have routinely looked at the factors based on the totality of the circumstances loosely finding individuals in physical control in situations where most people would question whether the person was truly in physical control.
The State does not have to prove that the defendant in a DUI case was driving or that they had the intent to operate a motor vehicle. Numerous Tennessee Supreme Court and Tennessee Court of Criminal Appeals cases set the guidelines for when an individual is in physical control. For example, an individual asleep impaired in the backseat of the vehicle is likely still in physical control of the vehicle. In one famous case ruling on physical control, the Court held that the individual was in physical control because, although the defendant was sleeping in the backseat of the vehicle, the individual could have jumped into the driver’s seat, turned the vehicle on and drove on a public roadway even though the individual was asleep in the back seat with the vehicle turned off. The general public far too often believe that so long as the keys are not in the ignition, and they are asleep in a seat other than the driver’s seat they cannot be arrested and convicted for DUI. Yet, the Tennessee courts have ruled otherwise.
What does factor (4) mean regarding the defendant’s ability to physically use the vehicle?
This factor usually comes up when there is a question regarding the vehicle’s capability of being operated usually because of a mechanical issue. Another famous case is where a vehicle was out of gas on the side of the highway with a gas station approximately 1 mile away from the vehicle’s location. Although the defendant in this case did not walk to the gas station, the court determined that because the defendant had the ability to walk to the gas station, get a gallon of gas, walk back to his vehicle, fill it with gas, and operate it while still impaired, that the vehicle was capable of being operated or moved.
This factor may be conclusive, despite the totality of the circumstances analysis, in the event of a vehicle being rendered completely immobile. If the vehicle is incapable of being operated, you cannot be physically operating the vehicle and therefore you cannot be in physical control.
Your Right to Remain Silent and its Impact on Your DUI Case
However, this is where it is essential that you use your right to remain silent and do not provide the police with incriminating statements. Although you may not be in physical control at the time of your encounter with the police due to the vehicle being immobile, the State may prove, based on your admissions, that you were impaired at the time the vehicle was operable. For example, if you were in a single vehicle accident that resulted in your vehicle becoming inoperable and you admit to drinking prior to the accident and the accident only occurred a short time ago, the State may establish impairment at the time of driving an operable vehicle. However, without a witness observing the wreck, the State cannot establish impairment at the time of driving or physical control if your vehicle is inoperable at the time of the police interaction.
Contact Our Knoxville DUI Attorneys For Assistance
At Barnes & Fersten, our DUI attorneys have the expertise and legal knowledge to handle all manners of DUI charges including challenging the State’s attempt to overreach on establishing you being in physical control of the vehicle. Our office in Knoxville serves clients throughout East Tennessee, including Blount County, Sevier County, Loudon County, Anderson County, and Roane County. We are committed to providing personalized legal representation to create a strategy that will lead to the best possible outcome for your case. Contact our DUI attorneys for the expert guidance and representation you need to protect your rights, your vehicle, and your future.
Attorney At Law, Managing Partner
Brandon D. Fersten is an esteemed Knoxville attorney practicing DUI, criminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape.
