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Noting Arizona’s DUI statutes do not define “actual physical control,” “whether a driver had actual physical control is a question for the fact finder and should be based upon consideration of all the 7 STATE v. MCKINNEY Decision of the Court circumstances.”

(“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.”).

Thus, even if the car was inoperable by the time Officer H. arrived on the scene and found Harris, substantial evidence still supports his convictions.3 –28, –30 (1995) (“[E]ven where a defendant is determined to have relinquished actual physical control, if it can be shown 3That is, because the DUI statutes provide in the disjunctive that an intoxicated person may be guilty by driving or exercising actual physical control of a veh

the supreme court stated that the issue of actual physical control required the trier of fact to determine “whether the defendant was simply using the vehicle as a stationary shelter, or actually posed a threat to the public by the exercise of present or imminent control over the vehicl

Arizona likewise requires fact finders to assess the totality of the evidence and to consider similar factors when determining actual physical control, but those considerations ultimately require fact finders “to decide if a defendant ‘actually posed a threat to the public.’”

7 ¶11 In State v. Love, this Court, however, abandoned the bright-line jurisprudence in favor of a “totality approach.”

-27 , -29 (1995) (rejecting suggestion that cases should turn on whether engine is running and vehicle is pulled entirely off the road).

P.2d 626 (1995); P.2d 456 (1983); P.2d 338 (1954); Potter v. Ariz. Dep’t of Transp., P.3d 837 (App. 2002); Dawley.

(“It is unwise to proceed down a path on which we attempt to identify ‘black letter’ criteria for establishing actual physical control as a matter of law in each and every case.”).

§§ 28-697(A), 28-692; , (stating factors to be considered include whether engine running, ignition turned on, and where key is located); , (holding person can be convicted even if the engine has not been started).

Although the phrase “actual physical control” was not defined by the legislature, it has been held to apply in certain situations to a person who, at the time, was not “driving or otherwise putting a vehicle in motion.”