What is Actual Physical Control?

Arkansas law makes it illegal for an intoxicated person to “operate or be in actual physical control” of a motor vehicle. Actual physical control generally means that the person has the present ability and authority to operate or manage the vehicle. The purpose of the rule is to address the danger created when an intoxicated person is positioned to put a vehicle into motion. (Ark. Code Ann. § 5-65-103(a)(1)). 

Usually, all terms in a chapter of a legal code are listed and defined at the very beginning. However, the concept of “actual physical control” is not defined in Arkansas’s DWI statutes at all, which means it is largely interpreted by case law (Ark. Code Ann § 5-65-102 and 5-65-103).  

Case Law That Defines Actual Physical Control 

There are thirteen core cases that make up the case law on actual physical control for DWIs in Arkansas. They cover a plethora of factors, from circumstantial evidence to proper court procedure.  

Dowell vs. State (1984)

Actual Physical Control?: No. Insufficient evidence of actual physical control. 

Dowell was found asleep in a parked vehicle. The engine was off, and the keys were on the seat beside him. The Arkansas Supreme Court found that the State had not proved actual physical control. The evidence did not establish that Dowell drove the vehicle to that location or became intoxicated before it was parked.  

Why it matters: Dowell established the foundational distinction between merely occupying a vehicle and having control sufficient to support a DWI conviction – i.e. actual physical control. The case is summarized and applied in Stephenson v. City of Fort Smith. 

Read Dowell v. State 

Citation: Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984)

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Wiyott v. State (1985)

Actual Physical Control?: Yes. Sufficient evidence of actual physical control. 

Wiyott was asleep behind the steering wheel with the keys in the ignition. When officers awakened him, he attempted to start the vehicle. The Arkansas Supreme Court concluded that he had the ability and authority to manage the vehicle and could have started it at any moment. 

Why it matters: Wiyott is the leading case supporting actual physical control when the defendant is behind the wheel and the keys are in the ignition. 

Read Wiyott v. State 

Citation: Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985) 

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Azbill v. State (1985)

Actual Physical Control?: Yes. Circumstantial evidence and the defendant’s statements established control. 

Azbill was found intoxicated outside a truck that was stuck in a highway median. The officer did not see him driving, and the location of the keys was uncertain. However, Azbill admitted that he had been traveling from Jonesboro, and no one else was near the vehicle. 

Why it matters: This case is all about admissions. Actual physical control or prior operation can be established through an admissionfrom the defendant and circumstantial evidence, even when an officer does not see the defendant behind the wheel.  

Citation: Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985) 

Read Azbill v. State 

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Roberts v. State

Actual Physical Control?: Yes. Sufficient evidence of actual physical control. 

Roberts was asleep behind the wheel of a vehicle that had struck a building. The ignition was turned on, the transmission was in drive, and the engine was not running. The Arkansas Supreme Court upheld the DWI conviction. 

Why it matters: A running engine is not always required. The position of the ignition, transmission, vehicle, and driver may establish control. 

Citation: Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985) 

Read Roberts v. State 

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Blakemore v. State (1988)

Actual Physical Control?: Yes. There was sufficient evidence where the defendant was passed out in a running vehicle. 

Blakemore was asleep or passed out in the front seat of a truck with its engine running and lights on. Officers had difficulty waking him. The court found that he could have awakened and driven the vehicle at any moment. 

Why it matters: Blakemore is frequently cited when an intoxicated person is found asleep in a running vehicle. 

The case is discussed in Diehl v. State.  Read Blakemore v. State. 

Citation: Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988) 

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Hodge v. State (1989)

Holding: Actual physical control is a factual question, not an automatic legal conclusion. 

The evidence indicated that Hodge was in the driver’s position with the engine running. Although those circumstances could support an inference of control, the trial court improperly instructed the jury that it was required to find actual physical control if certain facts existed. 

The court also explained that vehicle operability matters. A vehicle may be so incapable of operation that control over it falls outside the DWI statute. 

Why it matters: Keys in the ignition and a running engine are strong evidence, but the factfinder must still decide whether actual physical control existed under all the circumstances.  

Read Hodge v. State 

Citation: Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989) 

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Wetherington v. State (1994)

Actual Physical Control?: Yes. While the State heard conflicting evidence between an eyewitness testimony and the officer’s testimony, their prerogative is to view the evidence most favorably to the State. 

Arkansas law permits the State to prove operation or actual physical control through circumstantial evidence.  

Why it matters: This case is regularly cited when the arresting officer arrived after the alleged driving had occurred.  

Read Wetherington v. State 

Citation: Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994) 

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Springston v. State (1998)

Actual Physical Control?: Yes. Circumstantial evidence proved operation or control. 

Springston was found away from a truck that had gone into a ditch. The truck belonged to him, and keys found in his pocket fit the vehicle. Witness testimony and surrounding circumstances connected him to its operation.  

Why it matters: Actual physical control does not always require the defendant to be inside the vehicle when police arrive. The court opinion makes this point clear: “It is well-settled that the State may prove by circumstantial evidence that a person operated or was in actual physical control of a vehicle.”  

Read Springston v. State 

Citation: Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998) 

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Diehl v. State (1998)

Actual Physical Control?: Yes. Sufficient evidence of actual physical control. 

Diehl was unconscious in the driver’s seat with his legs beneath the steering wheel. The keys were in the ignition, and the engine was running. 

Why it matters: Diehl is a straightforward application of Wiyott and Blakemore to a sleeping or unconscious driver in a running vehicle. 

Read Diehl v. State 

Citation: Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998) 

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Stephenson v. City of Fort Smith (2000)

Actual Physical Control?: No. Insufficient evidence of actual physical control. 

Stephenson was asleep behind the wheel of a parked vehicle. The engine and lights were off, and the keys were on the dashboard. The Arkansas Court of Appeals declined to distinguish keys on the dashboard from the keys on the seat in Dowell. 

Why it matters: Stephenson reinforces that merely sitting behind the wheel with keys somewhere inside the vehicle does not necessarily establish actual physical control. 

Read Stephenson v. City of Fort Smith 

Citation: Stephenson v. City of Fort Smith, 71 Ark. App. 190, 36 S.W.3d 754 (2000) 

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Bohanan v. State (2001)

Actual Physical Control?: Yes 

Holding: Sufficient circumstantial evidence of control and operability, as well as admissions of drinking 

Bohanan was asleep in the front seat, apparently having moved from the driver’s position. The keys were in the ignition, he was alone, and he admitted drinking several miles away. 

Why it matters: The case confirms that vehicle operability is both relevant and may be established through circumstantial evidence.  

Read Bohanan v. State 

Citation: Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001) 

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Charles Franklin Rogers v. State (2006)

Actual Physical Control?: No. Insufficient evidence of actual physical control in a remote-start case. 

A friend placed Rogers in the vehicle to sleep and remotely started it so the heater would run. The evidence established that the vehicle could not be driven until a key was inserted into the ignition. The State did not prove that the key was in the ignition. 

Why it matters: Rogers applied the origins of actual physical control case law – Dowell vs. State (1984) – to a vehicle equipped with remote start. The decision depended on specific evidence showing that the running vehicle could not be driven without inserting the key. 

Citation: Rogers v. State, 94 Ark. App. 47, 224 S.W.3d 564 (2006) 

Read Charles Franklin Rogers v. State 

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Chasity Rashelle Rogers v. State (2024)

Actual Physical Control?: Yes. Sufficient evidence of actual physical control despite disputes about the key fob. 

Rogers was unresponsive in the driver’s seat, wearing her seat belt, while the engine and lights were on. She also admitted driving herself to the location. Although the defense suggested that the vehicle might have been remotely started, there was no testimony establishing that it was remotely started or could not be driven without a key fob. 

The court distinguished the 2006 Charles Rogers case because that earlier case contained specific testimony proving the limitations of the remote-start system.  

Why it matters: This is the most important recent Arkansas case addressing actual physical control in a modern key-fob or remote-start vehicle. It shows that the physical location of a traditional ignition key is not always dispositive. 

Read Chasity Rashelle Rogers v. State 

Citation: Chasity Rashelle Rogers v. State, 2024 Ark. App. 340 

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Relevant Facts to Prove Actual Physical Control 

Actual physical control is therefore a fact-specific question. Such facts include:  

• Whether the person was in the driver’s seat 

• Whether the engine was running 

• Whether the keys were in the ignition 

• Whether the person had access to a key or key fob 

• Whether the vehicle was capable of being driven 

• Whether the person admitted driving 

• Whether other circumstantial evidence showed that the person operated or controlled the vehicle 

If you believe actual physical control is in question, we are experts in DWI case law, and are the ideal choice to represent such a case. 

Ludwig Law Firm 
Phone: 501-868-7500 
Website: ludwiglawfirm.com 
Serving clients throughout Central Arkansas. 

Disclaimer: The information provided in this blog is for general informational purposes only and is not intended as legal advice. Reading this blog or interacting with Ludwig Law Firm through this content does not create an attorney-client relationship. Every legal case is different, and you should not act or rely on any information in this blog without first consulting with a licensed attorney about your specific situation. For legal guidance tailored to your needs, please contact Ludwig Law Firm directly.