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This article has been written by Dakshita Arora pursuing the Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho. This article has been edited by Smriti Katiyar (Associate, Lawsikho). 


Impaired driving or driving under influence is a major public health concern in many around the globe. According to the recently published statistics, there were 112 million incidents of alcohol-impaired driving and 10,500 alcohol-impaired fatalities in the United States in a year, approximately. The federal government has been enacting provisions like increasing the legal drinking age to 21 years or increasing the penalties for those caught driving under the influence which has contributed substantially in reducing injuries and deaths caused by such accidents. 

In Nevada specifically, there were approximately 90 fatalities in a year attributed to DUI. The Nevada DUI statute provides that it is prohibited for any person with a concentration of alcohol of 0.10 or more in his breath or blood, to drive or to be found in actual physical control of a vehicle. It is pertinent to notice the distinction made here between “to drive” and “to be found in actual physical control. The author, through this article, analyses this distinction between the two and the question as to whether a person can be charged with laws with respect to Driving under Influence in Nevada without actually driving at all? 

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Defining “Actual Physical Control”

In order to appreciate the intent of the legislature while adding both the phrases- ‘to drive’ and ‘to be actual physical control’, it is crucial to primarily comprehend their meaning. While the former is self-explanatory, the latter has been defined by the court as “existing or present bodily restraint, directing influence, domination, or regulation of the vehicle”. This means that even if the driver is not actually driving the vehicle, him being behind the wheels with a readily available opportunity to regulate the vehicle is being in actual physical control of the vehicle. 

The aforementioned case was of a person sleeping, slumped over his steering wheel in his car with the engine running. He was then tested for the concentration of alcohol in his blood and he failed the field sobriety test. He was subsequently convicted for DUI. The counsel representing him claimed in the appeal that since the car was not in motion, the appellant cannot be charged with DUI. The court, while rejecting the claim stated that the entire purpose of the legislature while inserting the phrase “actual physical control” was to discourage people who are intoxicated from placing themselves in a position where they might commence or recommence driving, notwithstanding the fact that the vehicle was actually being driven at the time or not. 

The assumption of being probably intoxicated

While adding to the premise of actual physical control, an assumption of being probably intoxicated has also been quite prominent in the courts of law of Nevada. Evidently, it stems out in similar cases of DUI as discussed above. In the case of Isom v State, a woman was found in a car with the engine running and headlights off. A police officer woke her up for questioning. She then tried to restart the vehicle to drive off saying that she wanted to go home. Eventually, a field sobriety test was conducted, she was found to be intoxicated and was hence, convicted of DUI. She claimed that she was not driving the vehicle when the officer had arrested her. While addressing the claim, the court observed that even though she was not driving at that point in time, it can be concluded considering the facts, that she was probably intoxicated when she had driven to the spot where she was found by the officer. It could also be concluded through factual proof that she was in actual physical control of the vehicle at some point that night. This assumption is quite significant to avoid situations wherein an intoxicated person is not driving at the time but might decide to do so. The absence of this presumption might hamper the very aim of the DUI laws. 

The role of Intent

The principles of DUI are quite stringent in order to prevent as much damage as possible. However, while doing so, the drivers shall not be punished unnecessarily or beyond the edge. In a recent case of 2020, the Supreme Court of Nevada had ruled that the drivers of Nevada will no longer face second-degree murder charges. The law states that those charged with second-degree murder would be sentenced to at least ten years in prison before being eligible for parole. The court was of the view that no person gets behind the wheels with an intent of causing an injury to another person. Considering this, the gravest charge that can be brought against a fatal DUI driver is felony DUI causing death i.e. maximum of 8 years of imprisonment.


The laws on DUI are quite important for the legal framework of any country, especially since in modern world of automobiles . These cases are most common to occur and have major consequences, sometimes even leading to the demise of a person. The DUI laws of Nevada are quite inclusive and have reduced the injuries caused due to impaired driving significantly in the past couple of decades. The judiciary has also not neglected the drivers and have considered their lack of intent as a reason to not to charge them with the gravest of punishments. Finally, to address the question, it can be concluded that a person can be charged with laws with respect to Driving under the influence in Nevada without actually driving at all!

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