Charged with APC?
You weren’t driving. It still counts.
North Dakota’s DUI statute also punishes being in “actual physical control” of a vehicle while impaired. People get arrested for APC while sleeping it off in a parked car with the engine off. The penalties are identical to DUI, and the defenses are different.
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What APC means
The DUI statute makes it a crime to drive or be in actual physical control of a vehicle while under the influence. “Actual physical control” has been interpreted broadly by North Dakota courts: you can be in APC while parked, with the engine off, with the keys in your pocket, in a lot, in your own driveway. North Dakota’s pattern jury instruction puts it this way: a person is in actual physical control when the vehicle is operable and the person is in a position to manipulate one or more of the controls that cause it to move or affect its movement.
Common APC arrests: pulling over to sleep on a road trip; sitting in a running car to stay warm in a bar parking lot; moving a car a few feet in a lot; waiting in the car for a ride.
Same penalties as DUI
An APC conviction is a DUI conviction. It carries the same mandatory minimums, the same license suspension, and counts as a prior if you’re ever charged again. There is no “lesser” APC penalty.
How APC cases are defended
- Was it actually “control”? Both halves of the definition are fair game: was the vehicle operable (dead battery? out of gas? stuck?), and were you in a position to manipulate the controls (back seat, keys out of reach, reclined and asleep)? Where the keys were, whether the engine could run, where it was parked, and what you were doing all matter.
- Was there a lawful basis to approach and detain you? A parked car is not a traffic stop. Officers still need a reason to investigate.
- Timing of impairment. The state has to prove you were impaired while in control. If you drank after parking, or were sitting in the car for hours, the chemical test may not prove what they need it to prove.
- Everything else in a DUI case — field sobriety testing, the breath machine, the advisory — still applies.
The license clock is still running
An APC arrest triggers the same DOT process and the same 10-day deadline to request a hearing. Read about the DOT hearing.
Talk to a North Dakota DUI lawyer now. It’s free.
☎ 701-365-8088Common questions
I was asleep in the back seat. How is that control?
It may not be. Sleeping in the back seat with the keys away from the ignition is materially different from sitting in the driver’s seat with the engine running. These facts are the whole case.
Can APC be reduced to something else?
Depending on the facts, APC cases are sometimes resolved as reckless driving or another non-DUI offense. Whether that’s realistic depends on the evidence and the county.
Will an APC show up as a DUI on my record?
Yes. It’s a conviction under the DUI statute and is treated as one by courts, the DOT, insurers, and employers.
Charged with DUI in North Dakota? Call now.
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Attorney advertising. Prior results do not guarantee a similar outcome. Penalty figures reflect North Dakota mandatory minimums published by the NDDOT and are subject to change; courts can impose more. This page is general information, not legal advice for your situation, and contacting us does not create an attorney–client relationship until we agree to represent you.