Mr. Berlinski Case Summary

Berlisnki Memo
LEGAL ISSUE Would the courts likely conclude that Mr. Berlinski was in actual physical control of his parked vehicle in violation of A.R.S. §28-1381?
BRIEF ANSWER Probably not. Per A.R.S. §28-1381, Mr. Berlinski was under the influence of intoxicants, and inside his illegally parked vehicle, with the keys in the ignition and the engine running, behind the driver’s seat. Mr. Berlinksi admitted to being “drunk” after having more than four shots of whiskey at his girlfriend’s home. Both his breathalyzer tests resulted in 0.12. However, on the question of whether he was in “actual physical control,” evidence shows that Mr. Berlinski was asleep, with the radio and the A/C on. He readily admits that his girlfriend kicked him out of her home without his phone, and was therefore unable to call anyone for assistance, deciding then to “sleep it off” inside his vehicle.
DISPOSITIVE FACTS Mr. Berlinski had been drinking at his girlfriends’s home, a few blocks away from where he Officer Alvarez found and arrested him. Mr. Berlinski was asleep at the driver’s seat, with the keys in the ignition and the engine running; both the headlamps and the tail lights, the radio, and the A/C were on. He admitted to being drunk prior to his breathalyzer tests, which

Love, 182 Ariz. 324 (1995), the courts departed from this definition by allowing the trier of fact to consider the totality of the circumstances in the determination of whether the defendant was in actual physical control of his vehicle. By examining all available evidence in order to more accurately ascertain whether the defendant was using the vehicle as a stationary shelter or actually intended to drive, the courts can better determine guilt or