STATE V. ZARAGOZA
221 Ariz. 49, 209 P.3d 629 (2009)
221 Ariz. 49
Supreme Court of Arizona,
STATE of Arizona, Appellee,
Vincent ZARAGOZA, Appellant.
June 3, 2009.
¶ 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.
¶ 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 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 Upon further investigation, the police found that his license had been revoked.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 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, 27, ¶¶ 9–10, 202 P.3d 489, 492 (App.2008). The court reasoned that: