APC, which is short for “Actual Physical Control,” is a crime that permits law enforcement officers to arrest intoxicated people with the ability to drive, but who are not in fact driving when discovered by the officer. For example, if a police officer happens upon an intoxicated motorist passed out in the driver’s seat with the keys in the ignition, the officer cannot arrest that person for DUI, but they can lawfully arrest the driver for APC, even though the officer never observed the person in the act of driving.
One question that has haunted the case law surrounding APC, however, is whether the officer can consider the intent of the person arrested, or whether the crime is completed by having any means of operating the vehicle. In Brockman v. State, 2013 OK CIV APP 48, the Oklahoma Court of Civil Appeals endeavored to answer that question. The Brockman Court described the facts as follows:
The arresting officer was dispatched to an apartment complex in response to reports of a fight in progress. Upon arriving at the scene, the officer determined Brockman had been involved in the altercation. Brockman was sitting in the passenger seat of his vehicle, with the keys in the ignition and the motor running. Brockman testified that his wife had driven to the apartment to pick up her sister, who planned to drive Brockman and his wife home because they had been drinking at a bar and were intoxicated. Brockman claims that while his wife was inside her sister’s apartment, he stepped out of the vehicle to smoke a cigarette and was involved in an altercation. When his wife and sister-in-law came out of the apartment, Brockman again entered the vehicle on the passenger’s side. His wife and another passenger sat in the back seat, and his sister-in-law entered the driver’s seat and started the ignition. The apartment manager came out to investigate the altercation that had occurred, and called the sister-in-law over to discuss it. It was at that time the police officer arrived and observed Brockman in the passenger seat with the driver’s side empty and the car running. Brockman consented to a breathalyzer test. His blood alcohol content was .16 and he was served notice of the revocation of his driver’s license. Brockman was arrested for assault and battery and for APC.
Brockman, at Para. 2.
The State argued that Brockman violated the APC statute, despite being in the passenger seat, because Brockman was in close proximity to the driver’s seat and the keys were in the ignition. The Court examined the testimony from the officer and concluded there was no evidence that Brockman was ever in the driver’s seat or ever intended to drive the car. Without evidence that Brockman intended to drive, the Court concluded that under these circumstances, where Brockman was in the passenger seat, there was no evidence that Brockman violated the APC statute. The Court went on to note that public policy would disfavor arresting Brockman for APC, “[arresting Brockman] fails to recognize the policy of encouraging what might otherwise be drunk drivers to obtain a sober driver for a vehicle.” Id. at Para. 10.
The decision gives officers greater discretion in making arrests for APC. If the evidence confronting the officer suggests the suspect was not intending to drive the vehicle, regardless of the circumstances, the officer may lawfully decline to arrest the person. If, however, the facts are ambiguous, and the officer does make an arrest for APC, the suspect now has the opportunity to present evidence of their intent to show that they had no intention of driving and therefore cannot be guilty of APC.
If you have questions about APC or DUI, contact the car accident attorneys at Bryan & Terrill Law, 918-935-2777.