Actual Physical Control in North Dakota

by | Jul 16, 2021 | Criminal | 0 comments

You are likely aware of what Driving Under the Influence (DUI) is, but have you heard of Actual Physical Control (APC)? Imagine this: it is 2 a.m., you have been drinking at a bar, there are no Ubers or cabs, and it is too cold and too far to walk home. You don’t want to drive drunk, so you decide to sleep in your car until morning. 

As good as your intentions may be, you could get charged with actual physical control. North Dakota Highway Patrol defines actual physical control as “being in immediate control or having the ability to operate the motor vehicle while being under the influence or having a blood-alcohol concentration of .08 percent or more.” What this means is that even though you are not driving, being in the car with the ability to drive while under the influence is against the law. The actual physical control statute is seen as a preventative measure, enabling law enforcement to apprehend intoxicated drivers before they strike.

Whether or not you are intending to operate the vehicle is irrelevant. The key factor is determining whether the intoxicated person is able to manipulate the vehicle’s controls. A driver has “actual physical control” of his car when he has real (not hypothetical), bodily restraining or directing influence over its movement of machinery. The driver may be in “actual physical control” of his car “so long as the driver is keeping the car in restraint or in position to regulate it’s movements.”

A good example of this is Vanlishout v. North Dakota Dept. of Transportation (2011). Lee Vanlishout’s license was suspended for actual physical control after he was found passed out drunk in the backseat of a car that was stuck in a ditch. At the administrative hearing, a friend testified that it was he was who driving the car and that he couldn’t wake up Lee when he left to go get help. Despite this testimony and the argument that Lee could not have driven the car from the backseat, Lee was still convicted as he “could have set out on an inebriated journey at any moment.” Therefore, regardless of where you are in the vehicle, if you are above the legal limit, you could get charged with actual physical control. 

What are the Penalties for Actual Physical Control? 

North Dakota Century Code §39-08-01(5) explains: 

  • If it is your first offense (in 7 years), the charge is considered a class B misdemeanor where the sentence must include a $500 fine, and you will have to complete an addiction evaluation by an appropriate licensed addiction treatment program. 
  • A second offense (in 7 years) is also considered a class B misdemeanor, and the offender will be sentenced to 10 days’ imprisonment (48-hours served consecutively), a $1,500 fine, an order to complete an addiction evaluation, and 360 days’ participation in a 24/7 sobriety program. 
  • If a person commits actual physical control for the third time in 7 years, they’ll have to complete the addiction evaluation, participate in the 24/7 sobriety program for 360 days, be fined $2,000, and be subjected to 120 days’ imprisonment. This charge is a class A misdemeanor. 
  • A person is guilty of a class C felony if charged with APC for the fourth time in 15 years. This results in a sentence of 1 year and 1-day imprisonment, a $2,000 fine, 2 years supervised probation, participating in the 24/7 sobriety program for those 2 years, and an order to complete an addiction evaluation. 

If you have any questions as to what may constitute Actual Physical Control or have found yourself on the receiving end of this charge, call Rosenquist Law Office today (701) 775-0654 to set up a free consultation. 

*The information contained in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon as so.

Related Posts