State v. Zaragoza

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0286-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 07-0117
VINCENT ZARAGOZA, )
) Pima County
Appellant. ) Superior Court
) No. CR20061822
)
)
) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Pima County
The Honorable Gus Aragón, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals Division Two
220 Ariz. 24, 202 P.3d 489 (App. 2008)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Kathryn A. Damstra, Assistant Attorney General Tucson
Attorneys for State of Arizona

Jack L. Lansdale, Jr. Tucson

And

LAW OFFICES OF STEPHEN PAUL BARNARD, P.C. Tucson
By Stephen Paul Barnard

And
NESCI, ST. LOUIS, & WEST, P.L.L.C. Tucson
By Joseph P. St. Louis
Attorneys for Vincent Zaragoza

AARÓN CARREÓN-AÍNSA, PHOENIX CITY PROSECUTOR Phoenix
By John Tutelman, Deputy City Prosecutor
Attorneys for Amicus Curiae Phoenix City Prosecutor’s Office
________________________________________________________________

R Y A N, 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 Defendant Vincent

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

2
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 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
3
concentration of 0.08 or more while his license was suspended or
1
revoked. See A.R.S. §§ 28-1381, -1383.

¶5 The 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 he might have
hypothetically exercised but never did, that
instruction was erroneous.

Id.

¶6 We granted the State’s petition for review because

this is a recurring issue of statewide importance. We have

1
Section 28-1381(A) provides in relevant part:

It is unlawful for a person to drive or be in actual
physical control of a vehicle in this state under any
of the following circumstances:

1. While under the influence of intoxicating liquor,
any drug, a vapor releasing substance containing a
toxic substance or any combination of liquor, drugs or
vapor releasing substances if the person is impaired
to the slightest degree.

2. If the person has an alcohol concentration of 0.08
or more within two hours of driving or being in actual
physical control of the vehicle and the alcohol
concentration results from alcohol consumed either
before or while driving or being in actual physical
control of the vehicle.

Section 28-1383 aggravates the offense to a felony if
the defendant’s license has been revoked.
4
jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution, A.R.S. § 13-4032 (2001), and Arizona 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 also State 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)).2 The legislature, however, did not define “actual

physical control.” See id.

¶8 This 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

2
Section 66-156(a) provided in relevant part:

It is unlawful and punishable . . . for any person who
is under the influence of intoxicating liquor to drive
or be in actual physical control of any vehicle within
this state.
5
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.

¶9 This 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
6
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

travelled 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).
7
¶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

8
 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. (citing Atkinson v. State, 627 A.2d 1019, 1027 (Md. 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 others.” Id. at 327,

897 P.2d at 629.3 In addition, the

totality approach permits drunk drivers to be
prosecuted under a much greater variety of situations-
for example, even when the vehicle is off the road
with the engine not running. The drunk who turns off
the key but remains behind the wheel is just as able
to take command of the car and drive away, if so
inclined, as the one who leaves the engine on. The
former needs only an instant to start the vehicle,
hardly a daunting task.

Id.

3
Although Love held that under the totality test the
defendant could have been convicted or acquitted, and therefore
reversed the conviction, the Court observed that “if it [could]
be shown that such person drove while intoxicated to reach the
place where he or she was found, the evidence will support a
judgment of guilt.” 182 Ariz. at 327-28, 897 P.2d at 629-30
(citing State ex rel. O’Neill v. Brown, 182 Ariz. 525, 527, 898
P.2d 474, 476 (1995)(holding that driving while intoxicated
could be proven by circumstantial evidence)).
9
¶13 As evidenced by this case, in the wake of Love, lower

courts have struggled to craft a jury instruction that applies

the totality approach to the varying factual situations that

arise in these cases. Compare State v. Dawley (Barraza), 201

Ariz. 285, 288-89, ¶ 9, 34 P.3d 394, 397-98 (App. 2001)

(defining actual physical control as “potential use of the

vehicle [that] presented a real danger to himself or others”),

with Zaragoza, 220 Ariz. at ___, ¶ 8, 202 P.3d at 491-92

(refusing to apply Dawley instruction); see also State v.

Rivera, 207 Ariz. 69, 74, ¶ 16, 83 P.3d 69, 74 (App. 2004)

(declining to apply Dawley instruction when intoxicated

passenger grabbed steering wheel).

¶14 Accordingly, we first examine the jury instruction in

this case and then recommend an instruction to be used

prospectively.

III

¶15 Although we review de novo whether a jury instruction

correctly states the law, considered as a whole, jury

instructions need only be “substantially free from error.” State

v. Cox, 217 Ariz. 353, 356, ¶ 15, 174 P.3d 265, 268 (2007)

(internal quotation marks omitted). Jury instructions must be

viewed in their entirety to determine whether they adequately

reflect the law. State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d

1097, 1106 (1994). A conviction will not be reversed based on
10
the instructions unless, taken as a whole, they misled the

jurors. Cox, 217 Ariz. at 356, ¶ 15, 174 P.3d at 268.

¶16 Here, the trial court instructed the jury to consider

whether, “based on the totality of the circumstances shown by

the evidence, [defendant’s] potential use of the vehicle

presented a real danger to himself or others at the time

alleged.” The court then listed the factors set out in Love.

The court of appeals concluded that the “potential use” language

in the instruction rendered it erroneous because it would

“broadly reach those impaired persons merely at risk to control

a vehicle,” observing that “many impaired adults have ready

access to a vehicle, and therefore the potential use of one, but

retain the sound judgment not to drive.” Zaragoza, 220 Ariz. at

___, ¶ 8, 202 P.3d at 492.

¶17 But the instruction, taken as a whole, does not sweep

as broadly as the court of appeals feared. Rather, the jury

could only find Zaragoza 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.) Thus, a conviction could not be premised on speculative

potential use, but rather required proof that Zaragoza

“presented a real danger to himself or others” when confronted

by the officer. The instruction does not raise the specter that
11
any impaired person with access to a vehicle could be convicted

for being in actual physical control of a vehicle. In addition,

the instruction here closely tracks Love’s conclusion that a

person is in actual physical control when, under the totality of

the facts, the person “posed a threat to the public by the

exercise of present or imminent control” over a vehicle “while

impaired.” 182 Ariz. at 326-27, 897 P.2d at 628-29.

¶18 Therefore, even if describing actual physical control

as potential use of the vehicle could technically be construed

as over-broad, the trial court’s inclusion of the language

“presented a real danger to himself or others at the time

alleged,” along with the list of the factors from Love,

sufficiently narrowed the breadth of the instruction here. The

instruction, read in its entirety, could not have led a

reasonable jury to find Zaragoza guilty “based on control of his

vehicle he might have hypothetically exercised but never did.”

Zaragoza, 220 Ariz. at ___, ¶ 10, 202 P.3d at 492.

IV

¶19 Despite arguing that the instruction here was not

erroneous, the State asks this Court to recommend an instruction

to avoid the confusion surrounding the meaning of “actual

physical control.” Zaragoza makes a similar request. Both

12
offer variations of the Revised Arizona Jury Instruction

(“RAJI”) (Standard Criminal) 28.1381(A)(1)(DUI) (3d ed. 2008).4

¶20 The court of appeals here also attempted to give

guidance to trial courts on an appropriate instruction. It,

however, suggested language that could create unnecessary

ambiguity, stating that

[a]t least under the facts presented here, any
instruction defining the scope of the crime must focus
on the totality of the circumstances and what they
demonstrate about the defendant’s purpose in
exercising control of the vehicle. More specifically,
we believe the legislature intended to criminalize an
impaired person’s control of a vehicle when the
circumstances of such control – as actually physically
exercised – demonstrate an ultimate purpose of placing
the vehicle in motion or directing an influence over a
vehicle in motion.

4
RAJI 28.1381(A)(1) provides:

In determining the defendant was in actual physical
control of the vehicle, you should consider the
totality of circumstances shown by the evidence and
whether the defendant’s current or imminent control of
the vehicle presented a real danger to [himself]
[herself] or others at the time alleged. [Factors to
be considered might include, but are not limited to

{listing the factors from Love, 182 Ariz. at 326, 897
P.2d at 628.}

This list is not meant to be all-inclusive.] It is up
to you to examine all the available evidence in its
totality and weigh its credibility in determining
whether the defendant was simply using the vehicle as
a stationery shelter or actually posed a threat to the
public by the exercise of present or imminent control
over it while impaired.
13
Zaragoza, 220 Ariz. at ___, ¶ 14, 202 P.3d at 493 (emphases

added). The defendant’s intent is not an element of the strict

liability offense of driving while intoxicated. See A.R.S. §

13-202(B) (2001);5 A.R.S. §§ 28-1381, -1382; see also State ex

rel. Romley v. Superior Court (Cunningham), 184 Ariz. 409, 411,

909 P.2d 476, 478 (App. 1995); State v. Parker, 136 Ariz. 474,

475, 666 P.2d 1083, 1084 (App. 1983). The facts determine

whether a defendant exercises physical control of a vehicle.

Therefore, any instruction on actual physical control that

requires a jury to consider a defendant’s purpose in exercising

control of a vehicle incorrectly states the law.

¶21 Instead, we believe that the following modified form

of the RAJI should be used in future actual physical control

prosecutions. That instruction reads as follows:

In determining whether the defendant was in actual
physical control of the vehicle, you should consider
the totality of the circumstances shown by the
evidence and whether the defendant’s current or
imminent control of the vehicle presented a real
danger to [himself] [herself] or others at the time
alleged. Factors to be considered might include, but
are not limited to:

5
Section 13-202(B) provides in relevant part:

If a statute defining an offense does not expressly
prescribe a culpable mental state that is sufficient
for commission of the offense, no culpable mental
state is required for the commission of such offense,
and the offense is one of strict liability unless the
proscribed conduct necessarily involves a culpable
mental state.
14
 1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was
found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled
off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was
on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown
by the evidence.

This list is not meant to be all-inclusive. It is up
to you to examine all the available evidence and weigh
its credibility in determining whether the defendant
actually posed a threat to the public by the exercise
of present or imminent control of the vehicle while
impaired.

This instruction captures Love’s holding that “actual physical

control is a question for the fact finder and should be based

upon consideration of all the circumstances.” 182 Ariz. at 328,

897 P.2d at 630. It requires a fact finder, in determining if a

person actually physically controlled a vehicle in violation of

the statute, not only to consider all the circumstances, but

also to decide if a defendant “actually posed a threat to the

public by the exercise of present or imminent control over [the

vehicle] while impaired.” Id. at 326-27, 897 P.2d at 628-29.

15
 V

¶22 For the foregoing reasons we vacate the court of

appeals opinion and affirm the judgment of the trial court.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

16