State v. Zaragoza

• Decision Date: 03 June 2009
• Docket Number: No. CR-08-0286-PR.,CR-08-0286-PR.
• Citation: State v. Zaragoza, 209 P.3d 629, 221 Ariz. 49 (Ariz. 2009)
• Parties: STATE of Arizona, Appellee, v. Vincent ZARAGOZA, Appellant.
• Court: Arizona Supreme Court

209 P.3d 629

221 Ariz. 49

STATE of Arizona, Appellee, v.Vincent ZARAGOZA, Appellant.

No. CR-08-0286-PR.

Supreme Court of Arizona, En Banc.

June 3, 2009.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Kathryn A. Damstra, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Jack L. Lansdale, Jr., and Law Offices of Stephen Paul Barnard, P.C. by Stephen Paul Barnard and Nesci, St. Louis, & West, P.L.L.C. by Joseph P. St. Louis, Tucson, Attorneys for Vincent Zaragoza.

Aarón Carreón-Aínsa, City Prosecutor Phoenix by John Tutelman, DeputyCity Prosecutor, Phoenix, Attorneys for Amicus Curiae Phoenix City Prosecutor's Office.

OPINION

RYAN, Justice.

¶ 1 Arizona's driving under the influence statute, Ariz.Rev.Stat.("A.R.S.")§ 28-1381(A)(1)(Supp.2005), makes it "unlawful for a person to drive or be in actual physical control of a vehicle ... [w]hile under the influence of intoxicating liquor."The statute does not define "actual physical control," and courts have crafted inconsistent jury instructions on the meaning of that phrase.Although we conclude that the jury instruction in this case correctly guided the jury, at the request of both parties, we take this opportunity to set forth a recommended jury instruction for use in future cases.

I

¶ 2 In the early morning of April 29, 2006, a Tucson police officer responded to an emergency call at an apartment complex.Outside the complex, the officer saw DefendantVincent Zaragoza holding on to cars as he staggered through the parking lot toward his own vehicle.Zaragoza entered his car, and the officer pulled up behind him.When the officer shined his flashlight inside the car, he saw Zaragoza in the driver's seat with one hand on the steering wheel as he inserted the key into the ignition with the other hand.Zaragoza had not yet started the car.The officer instructed Zaragoza to exit, and he complied, nearly falling as he did so.Zaragoza was extremely intoxicated, with a blood alcohol content later found to be .357. Upon further investigation, the police found that his license had been revoked.

¶ 3 Zaragoza testified at trial that he intended to sleep in the car after having an argument with a woman inside the apartment complex and that he only planned to start the ignition to roll down the window and turn on the radio.He denied any intention of driving.The only issue at trial was whether Zaragoza exercised "actual physical control" of his vehicle.Over Zaragoza's objection, the court instructed the jury on actual physical control as follows:

The defendant is in actual physical control of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others at the time alleged.

(Emphasis added.)The court then listed several factors that the jury could consider when determining whether Zaragoza had controlled the vehicle.

¶ 4 The jury found Zaragoza guilty of aggravated driving under the influence of an intoxicant while having a suspended or revoked license and aggravated driving with a blood alcohol concentration of 0.08 or more while his license was suspended or revoked.SeeA.R.S. §§ 28-1381, -1383.¹

¶ 5The court of appeals reversed, concluding that because the jury instruction defining "actual physical control" included the phrase "potential use," it misled the jury.State v. Zaragoza,220 Ariz. 24, ___, ¶¶ 9-10, 202 P.3d 489, 492(App.2008).The court reasoned that

[b]ecause the instruction could have been interpreted by the jurors as requiring them to find Zaragoza guilty based on control of his vehicle hemight have hypothetically exercised but never did, that instruction was erroneous.

Id.

¶ 6We granted the State's petition for review because this is a recurring issue of statewide importance.We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution,A.R.S. § 13-4032(2001), andArizona Rule of Criminal Procedure 31.19.

II

¶ 7 For many years the legislature limited Arizona's driving while intoxicated statute to actual driving.See, e.g.,Ariz.Code Ann. § 66-402(1939);Ariz. Rev.Code § 1688(1928);see alsoState v. Ponce,59 Ariz. 158, 161, 124 P.2d 543, 544(1942)(holding that for an intoxicated person, "[i]t is the operation of the motor vehicle which is forbidden").In 1950, the legislature extended the statute to prohibit "actual physical control" of a vehicle while under the influence of intoxicating liquor.1950 Ariz. Sess. Laws, ch. 3, § 54(1st Spec.Sess.)(codified at Ariz.Code Ann. § 66-156(Supp.1951)).²The legislature, however, did not define "actual physical control."Seeid.

¶ 8This Court first addressed the actual physical control language several years later in State v. Webb, concluding that the legislature sought to include more than just driving because "the word drive was retained, and the words or be in actual physical control were added in the disjunctive."78 Ariz. 8, 10, 274 P.2d 338, 339(1954)(internal quotation marks omitted).Webb, whose truck was in a traffic lane with its lights on and the motor running, was found "to be in a very intoxicated condition, `passed out' or asleep with both hands and his head resting on the steering wheel."Id. at 9-10, 274 P.2d at 339.The Court held that the "legislature intended" the revised statute to "apply to persons having control of a vehicle while not actually driving it or having it in motion."Id. at 10, 247 P.2d at 339.The Court observed that "[a]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public."Id. at 11, 247 P.2d at 340.

¶ 9This Court next addressed the issue of actual physical control in State v. Zavala,136 Ariz. 356, 666 P.2d 456(1983).There, the police found an extremely intoxicated defendant unconscious and "hanging partially from the window on the driver's side of the truck[,]" parked in the emergency lane of a freeway.Id. at 357, 666 P.2d at 457.The motor was not running and the key was "in the off position."Id.The Court distinguished Webb on two grounds: the truck was not in a traffic lane and the engine was not running.Id. at 358, 666 P.2d at 458.The Court found these circumstances indicated "that [the]defendant voluntarily ceased to exercise control over the vehicle prior to losing consciousness."Id. at 359, 666 P.2d at 459.The defendant therefore could not be convicted of being in actual physical control.Id.The Court felt compelled to reach this interpretation of actual physical control because it believed that "it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober."Id.

¶ 10 Following Zavala, our courts of appeals held that unless an intoxicated person's vehicle was completely off the traveled part of the road, with the engine off, that person could be found to be in actual physical control of the vehicle.See, e.g., State ex rel. McDougall v. Superior Court(Schrader),173 Ariz. 582, 586, 845 P.2d 508, 512(App.1992)(finding actual physical control when defendant was asleep in a car in a parking lot with the engine running);State v. Vermuele,160 Ariz. 295, 297, 772 P.2d 1148, 1150(App.1989)(reversing dismissal of prosecution when police found intoxicated driver illegally parked with the keys in the ignition but the engine off);State v. Superior Court(Goseyun),153 Ariz. 119, 122, 735 P.2d 149, 152(App.1987)(finding actual physical control when vehicle was parked ten to twenty feet from the edge of the road, with the engine running and headlights on while the intoxicated defendant slept inside).

¶ 11 In State v. Love,this Court, however, abandoned the bright-line jurisprudence in favor of a "totality approach."182 Ariz. 324, 327, 897 P.2d 626, 629(1995).This approach lent greater flexibility to the adjudication of actual physical control cases by providing a list of factors a fact finder could consider in deciding if a person actually controlled the vehicle.Id.In Love, the police found the defendant's vehicle parked in the emergency lane off an interstate with the engine running.Id. at 325, 897 P.2d at 627.The defendant was asleep, lying with his head near the passenger door and his legs under the steering wheel.Id.After being awakened, the defendant immediately reached for the gearshift, but the officer was able to convince him to move over and allow him to turn off the car.Id.Tests confirmed that he was intoxicated.Id.

¶ 12 In deciding whether the defendant exercised actual physical control of the vehicle, this Court declined to apply the "rigid, mechanistic analysis" of Zavala, finding it preferable "to allow the trier of fact to consider the totality of the circumstances in determining whether defendant was in actual physical control of his vehicle."Id. at 326, 897 P.2d at 628.The Court listed several factors to be considered in determining whether a defendant exercised actual physical control, including

whether the vehicle was running or the ignition was on; where the key was located; where and in what position the driver was found in the vehicle; whether the person was awake or asleep; if the vehicle's headlights were on; where the vehicle was stopped (in the road or legally parked); whether the driver had voluntarily pulled off the road; time of day and weather conditions; if the heater or air conditioner was on; whether the windows were up or down; and any explanation of the circumstances advanced by the defense.

Id.(citingAtkinson v. State,331 Md. 199, 627 A.2d 1019, 1027(1993)).We further noted that this list is not exhaustive.Id. at 326-27, 897 P.2d at 628-29.The totality approach permits the fact finder to determine "whether a driver relinquished control and no longer presented a danger to himself or...