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 
2 

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 
3 

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 
4 

concentration of 0.08 or more while his license was suspended or 

revoked. See A.R.S. §§ 28-1381, -1383. 1 

¶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.
5 

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.
6 

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 
7 

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). 
8 

¶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 
9 

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 situationsfor 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)). 
10 

¶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 
11 

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 
12 

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 
13 

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.
14 

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. 
15 

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. 
16 

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