In the state of Tennessee, where I am an attorney, one of the essential elements of the DUI law is that the accused must drive, operate, or be in physical control of the vehicle. The State must prove this element beyond a reasonable doubt in order to convict. These are all different elements that can include a number of situations. “Operate” is not the same as “drive,” and “physical control” is not the same as “operate.” In other words, there’s a reason the legislature includes three different elements in the law. Each serves its own purpose. Also notice the word “or.” It’s “drive, operate or be in physical control.” The state has to prove only one of the three, not all three together. I’ll discuss each element and give some examples.
“Drive” is pretty obvious. This means the car is moving along a street or highway under its own power with the accused behind the wheel.
“Operate” didn’t come along in Tennessee until later on. For this, the proof must show that the accused set in motion the operative machinery of the vehicle for the purpose of moving it. Some examples from Tennessee cases include starting the motor and letting it idle in neutral, as well as steering the car as it was being towed for repairs. In another case, which I think was a stretch, a car with the key in the ignition, turned off and unable to move because of a broken clutch, with the driver sleeping, was enough to convict.
“Physical control” gives the state an even broader net to charge people with DUI. It really depends on the facts, but Tennessee courts look at the following factors: 1) the location of the driver in relation to the vehicle, 2) the location of the ignition key, 3) whether the motor was running, 4) the driver’s ability to direct the use or non-use of the vehicle, and 5) the extent to which the vehicle itself is capable of being operated or moved under its own power or otherwise. Basically, if the facts show that the vehicle was capable of being immediately placed in motion to become a menace to the public and its driver, the driver will be facing a DUI conviction. These are the situations where a person could be asleep in the car after too much to drink, with the keys in their pocket, and get charged. Intent is not a factor. It doesn’t matter if the driver had no intention of driving the car. DUI is a strict liability crime, meaning the accused’s intent is irrelevant. All that matters is that they did the act.
Because of such a low threshold, in addition to the stiff penalties for even a first offense, it is important that an individual charged with DUI in Tennessee have their case properly reviewed by an experienced Memphis DUI attorney. There may be a number of ways to challenge the case on factual, procedural or legal grounds.