NRS 484C.110 states that it is illegal for a person to either drive or be in actual physical control of a vehicle in a public area while intoxicated.

While everyone understands that driving a vehicle while under the influence of alcohol can result in a DUI arrest, many people do not understand that merely sitting or sleeping in your vehicle while intoxicated can result in a DUI even if you never drove your vehicle. Many people assume that they are making a responsible choice if they opt to “sleep it off” in their car before driving home, but that responsible choice could result in a DUI.

The justification for this second type of DUI arrest comes from the statute itself, in particular the phrase “actual physical control”. “Actual physical control” means that while a person may not be driving the car, he had the ability to drive the car any time he chose to do so.

There is no exact test for determining whether a person is in actual physical control of a vehicle, but in Rogers v. State, 105 Nev. 230 (1989) the Court listed several factors that the Court looks at when determining whether a person had actual physical control of the vehicle.

The factors include:

1. Where and in what position the person is found in the vehicle;
2. Whether the vehicle’s engine is running or not;
3. Whether the occupant is awake or asleep;
4. Whether, if the person is apprehended at night, the vehicle’s lights are on;
5. The location of the keys;
6. Whether the person was trying to move the vehicle or moved the vehicle;
7. Whether the property on which the vehicle is located is public or private; and
8. Whether the person must, of necessity, have driven to the location where he was apprehended.

It is up to the Court in your case to weigh each of these factors in order to determine whether or not you were in actual physical control of the vehicle.

Given the law in Nevada, the best decision you can make, if you are intoxicated, is to stay away from your vehicle. Get a ride home with a friend, call a cab, or call a designated driver service. Here are some services to help in such a situation.

• AAA Tipsy Tow (on some major holidays): 800-222-4357
• Be My DD http://www.bemydd.com
• Designated Drivers, Inc. http://www.designateddriversinc.com

While the cost of some of these services and the inconvenience of leaving your car may seem bothersome at the time, they are far less annoying and expensive than having to fight a DUI case. In fact, many designated driver services even offer the service of having someone drive your car home for you.

If, however, you were trying to be responsible and now find yourself charged with a DUI, you need to speak with a criminal defense attorney. Having the right attorney could mean avoiding a DUI conviction. The right attorney knows existing case law on this subject and knows how best to argue the facts of your case in order to get you a favorable outcome. Contact me now to discuss your case.