Many people are surprised to learn that a person can face drunk driving charges even if they were not actually driving a vehicle at the time of the arrest. However, Oklahoma has a unique term known as actual physical control that allows law enforcement to arrest someone who appears to be in control of a vehicle and is under the influence of alcohol or drugs.
If you are facing an actual physical control charge and need legal assistance, contact Fassio Law. We provide criminal defense services throughout the OKC Metro area, including El Reno, Edmond, Yukon, Norman, Mustang, and surrounding areas. Call us today for a confidential consultation.
What Is Actual Physical Control?
Being in actual physical control (APC) of a vehicle while under the influence of drugs or alcohol is a crime in Oklahoma, even when the person is not actively driving. A person can be charged with APC if they are parked in a vehicle or even asleep while drunk, as long as they have the ability to operate the vehicle.
Oklahoma’s DUI law states that it “is unlawful and punishable as provided in this section for any person to drive, operate, or be in actual physical control of a motor vehicle within this state” while under the influence of alcohol or drugs.
APC vs. DUI: What’s the Difference?
Most states have DUI laws that prohibit driving a motor vehicle while under the influence of alcohol or drugs. A key element in these cases is that someone is actively driving, not parked or behind the wheel of a vehicle that is not turned on.
However, Oklahoma’s DUI law applies when someone is under the influence and is driving, operating, or in actual physical control of a vehicle. The Oklahoma Court of Criminal Appeals has held that the legislature intended to apply the law to individuals who control a vehicle but don’t have it in motion.
The court cited a case in which a defendant was found intoxicated behind the wheel of a vehicle with the motor running when there was no evidence that the defendant had actually driven the car. The Oklahoma court found that the defendant could not have been convicted of driving while under the influence, but could have been convicted of being in actual physical control while under the influence.
The major distinction between a DUI charge and an actual physical control charge is that you are driving when facing a DUI charge, but not when facing an APC charge. The potential penalties also vary significantly, with DUIs being punished more harshly because you were driving and could have injured someone, while you were not driving in the case of APC.
Can You Get a DUI Without Driving?
No, a DUI without driving is not possible. DUI stands for driving under the influence. Actual driving is a required element for this criminal offense.
How Can You Be Charged with APC?
In contrast, you can be charged with APC even if you are not driving. APC and driving are two separate things. The prosecution does not have to show you were driving to convict you of actual physical control.
To convict you of APC, the prosecution must present evidence beyond a reasonable doubt of all of the following legal elements:
- You were in actual physical control of the vehicle.
- You were on a public road, street, highway, turnpike, private road, alley, or lane that provides access to one or more single- or multi-family dwellings.
- You had a blood or breath alcohol concentration of 0.08 or more or were under the influence of alcohol, any intoxicating substance, or a combination of alcohol and any other intoxicating substance that could render a person incapable of safely driving a motor vehicle.
- The blood or breath alcohol test was administered within two hours of your arrest.
Under this legal framework, you could face an APC charge under various scenarios. For example, imagine that you went to a bar or club in Oklahoma City and then got in your vehicle to “sober up.” If law enforcement spots you, they might charge you with APC. Or, if you were thinking of driving after having a couple of beers and the keys were in the ignition, you could face an APC charge, even if you didn’t actually drive.
You could also face APC charges if police find you passed out in OKC due to intoxication while in the driver’s seat, even though your car was parked and your keys weren’t in the ignition.
What Are the Penalties for an APC Conviction?
The penalties for an APC conviction differ for individuals under 21 and those over 21. They also vary based on whether the defendant has any prior criminal history involving APC.
Under 21 Penalties
For a first conviction of operating or being in actual physical control of a motor vehicle while under the influence, while underage, a person can be punished by:
- A fine between $100 and $500
- Up to 20 hours of community service
- Required attendance and completion of a treatment program
- Any combination of the above
Additionally, the driver’s license can be seized.
For a second conviction, the penalties are:
- A fine of $100 to $1,000 or required completion of a treatment program
- A minimum of 240 hours of community service
- A mandatory revocation period
- The requirement to install an ignition interlock device for a minimum of 30 days after the mandatory revocation period, at the driver’s expense
A third or subsequent offense is punished by the following:
- A fine of $100 to $2,000 or the required completion of a treatment program
- A minimum of 480 hours of community service
- A mandatory revocation period
- The requirement to install an ignition interlock device for a minimum of 30 days after the mandatory revocation period, at the driver’s expense
21 and Over Penalties
A first-time conviction for those 21 or older is considered a misdemeanor and subjects them to the following penalties:
- Jail time of at least ten days, up to one year
- A find of up to $1,000
- A drug and alcohol assessment and evaluation
- Required completion of the recommendations made during the assessment and evaluation
For a second conviction within ten years, the offense is considered a felony and subjects the defendant to the following penalties:
- Jail time between one year and five years
- A fine of up to $2,500
- A drug and alcohol assessment and evaluation
- Required completion of the recommendations made during the assessment and evaluation
- Treatment, imprisonment, and a fine as provided by law
For a third conviction within ten years of being convicted of the felony offense, the following penalties apply:
- Be placed in the custody of the Department of Corrections for a minimum of one year, up to ten years
- A fine of up to $5,000
- Complete 240 hours of community service
- Install an ignition interlock device
- A drug and alcohol assessment and evaluation
- Required completion of the recommendations made during the assessment and evaluation
- Treatment, imprisonment, and a fine as provided by law
For a third conviction within ten years of being convicted of the felony offense, the penalties are similar, except that community service increases to 480 hours, and the term of imprisonment can be up to twenty years.
Harsher penalties apply if the person was driving or their drunk driving caused death.
Common Defenses Against an APC Charge
Actual physical control charges need experienced legal representation. Many of these cases are highly fact-specific. Where you were located in the vehicle, your proximity to the steering wheel, whether keys were present, the vehicle’s functionability, and your physical abilities can all impact whether the prosecution can convict you of actual physical control.
Your criminal defense lawyer can conduct an independent investigation to determine if you were intoxicated, whether you were in actual physical control of a vehicle, and whether you had the capacity to drive. They may try to obtain surveillance footage or footage from police cars, interview witnesses, or gather additional evidence that can be used in your defense.
Another possible defense strategy involves whether police followed proper procedures. If they entered private property or unlawfully arrested you, you may be able to raise these grounds as part of your defense. Additionally, if they did not administer a blood or breath test within two hours of your arrest, you may be able to seek to have the criminal charges dismissed.
How APC Charges Impact Your Driving Record and Insurance
APC charges can affect your driving record and insurance. APC is treated similarly to DUI, so your driver’s license can be suspended and you can have points added to your driving record. Additionally, one conviction subjects you to harsher penalties for a subsequent conviction.
Insurance companies can use adverse information in your driving and criminal record to increase your premiums. Additionally, any driver’s license suspension period can also factor into your premium amounts.
These potential adverse effects are another reason why it’s crucial to work with an experienced criminal defense attorney. Pleading guilty can have lasting effects on you, even if you are not incarcerated.
Can You Get an APC Charge Expunged in Oklahoma?
Yes. APC charges are handled similarly to how DUI records are handled. It’s possible to have an APC charge expunged, but possible expungement depends on the specific situation and whether the charge was dismissed, resulted in a deferred sentence, or led to a conviction.
What to Do If You Are Arrested for APC in Oklahoma
If you are arrested for APC in Oklahoma, the first thing to remember is your right to remain silent. You might be thinking that if you can just explain to the police that you weren’t driving, that you can clear up any confusion, but these statements can be what ultimately convicts you. Remember, police only need to be able to show that you could have driven, not that you actually did.
Be sure to contact an experienced criminal defense lawyer as soon as possible. They can review the charges against you, determine whether there are grounds to have the charges dismissed, try to negotiate a favorable plea agreement, and protect your rights.
Hiring an APC Defense Attorney: Why Experience Matters
Actual physical control charges are very fact-specific. You need an experienced criminal defense lawyer who can effectively argue that you were not in actual physical control of the ability or that police misconduct violated your rights.
Fassio Law was founded by a former prosecutor, so you can trust that we have the legal insight and experience to effectively defend you against an actual physical control charge. Contact us today to discuss your case in confidence.
Related: Can You Refuse a Breathalyzer in Oklahoma? Understanding Implied Consent Laws
