What Is Actual Physical Control (APC) In Oklahoma?

Physical Control (APC) In OklahomaActual physical control is like a DUI where the suspect is not actually driving a car. The typical APC scenario is that law enforcement first encounters the suspect intoxicated and sleeping behind the wheel of their vehicle. There is no definition of APC in Oklahoma statutes. The definition comes from case law, which defines it as existing or present bodily restraint, directing influence, domination or regulation, of an automobile, while under the influence of an intoxicating substance. The theory behind APC is that that a driver could start the automobile at any time and drive away. The easier it is for a driver to immediately drive away, the more likely it is that the driver will be found to be in actual physical control of the vehicle. The penalties for APC are the same as those for DUI.

The statute that defines an actual physical control (APC) violation in Oklahoma is 47 O.S. § 11-902. It’s illegal be in “actual physical control” of a motor vehicle in Oklahoma on a public road, highway, street, turnpike, or other public place, or on a private road, street, alley, or lane that provide access to one or more single or multi-family homes when you:

  1. Have a blood alcohol content .08 or more at the time of the test. The test must be administered within two hours of your arrest;
  2. Are under the influence of alcohol at the time;
  3. Have any amount of a Schedule I controlled substance, or one of its metabolites or analogs, in your blood, saliva, urine, or other bodily fluid at the time of the test. The test must be administered within two hours of your arrest;
  4. Are under the influence of any intoxicating substance other than alcohol that may make you incapable of safely driving or operating a motor vehicle; or
  5. Are under the influence of alcohol and any other intoxicating substance that may make you incapable of safely driving or operating a motor vehicle.

A motor vehicle in Oklahoma is defined as any vehicle that is self-propelled or propelled by electric power obtained from overhead trolley wires, but not operated on rails.

Punishment for APC in Oklahoma

The punishments listed below are the criminal penalties. APC in Oklahoma also affects the driver’s license. The license revocation process will occur in a civil case with the Oklahoma Department of Public Safety. An APC charge has the same effects on a license as a DUI charge.

The first APC offense in Oklahoma is a misdemeanor. The range of punishment in the county jail is ten days–one year. The maximum fine is $1,000. Offenders must participate in a certified alcohol and drug substance abuse evaluation and assessment program and follow all recommendations made in the assessment and evaluation.

An APC violation is a felony after having been convicted of or received a deferred judgment for a violation of Oklahoma’s DUI/APC law, having been convicted of or received a deferred judgment for a violation of another state’s DUI/APC law, or having been convicted of DUI/APC in a municipal criminal court of record Oklahoma within ten years after completion of the sentence or deferred judgment. The range of punishment in the Department of Corrections is one–five years. The maximum fine is $2,500. The offender must participate in a certified alcohol and drug substance abuse evaluation and assessment program and may have to follow all recommendations made in the assessment and evaluation.

An APC violation after having already been convicted of felony DUI/APC in Oklahoma or another state is a felony. The range of punishment in the Department of Corrections is one–ten years. The maximum fine is $5,000. The offender must participate in a certified alcohol and drug substance abuse evaluation and assessment program and may have to follow all recommendations made in the assessment and evaluation. The court may require the offender to complete 240 hours of community service and install an ignition interlock device.

An APC violation after having already been twice convicted of felony DUI/APC in Oklahoma or another state is a felony. The range of punishment in the Department of Corrections is 1–20 years. The maximum fine is $5,000. The offender must participate in a certified alcohol and drug substance abuse evaluation and assessment program and may have to follow all recommendations made in the assessment and evaluation. The court may require the offender to complete 480 hours of community service and install an ignition interlock device for at least 30 days. If the offender doesn’t undergo residential treatment, then he or she must serve at least ten days in prison.

An APC violation after having already been convicted of second-degree murder or first-degree manslaughter in which the death was caused as a result of driving under the influence of alcohol or other intoxicating substance is a felony. The range of punishment in the Department of Corrections is 5–20 years. The maximum fine is $10,000.

A conviction from another state will not be used to enhance an APC punishment in Oklahoma if the out-of-state conviction is based on a blood alcohol concentration of less than 0.08. Every DUI violation must be charged in either a state (county) court or an Oklahoma municipal court of record. Currently, only Oklahoma City and Tulsa are Oklahoma municipal courts of record. The statute does not specifically state that every APC violation must also be charged in either a state (county) court or an Oklahoma municipal court of record. Some municipalities that do not have courts of record continue to charge people with APC.

If you’re found guilty of APC, then you must participate in an alcohol and drug substance abuse evaluation assessment program and may be required to attend a victims impact panel. A fine in lieu of community service is not allowed if you’re found guilty of DUI. A $100 fine must be paid to the Drug Abuse and Treatment Revolving Fund upon a DUI conviction.

If you’re found guilty of felony APC, then you may be required to submit to electronic monitoring. Electric monitoring in Oklahoma consists of confinement within a specified location or locations with supervision through an electronic device approved by the Department of Corrections. The device must 1) be designed to detect whether the defendant is in the court-ordered location at the required times and 2) record violations.

If you’re over 18 years old and are convicted of APC while transporting or having any child under 18 years old in the car, then the fine will be enhanced to double the amount of the fine that would have been imposed for the underlying APC violation. You can also be prosecuted for child endangerment if you are in violation of this law or Oklahoma’s DUI/APC law involving a personal injury accident.

Any plea of guilty, nolo contest, or finding of guilt for a violation of Oklahoma’s DUI/APC law, a violation of another state’s DUI/APC law, a violation of Oklahoma DUI/APC law involving a personal injury accident, or a violation of Oklahoma’s DUI/APC law with at least one child in the vehicle, constitutes an APC “conviction” for purposes of Oklahoma’s DUI/APC law. A deferred judgment may only constitute a conviction for ten years after probation ends.

Arrested for actual physical control in Oklahoma? Don’t panic! Call Urbanic.® Call APC attorney Frank Urbanic at (405) 633-3420.

Sources: 47 O.S. § 11-902, 22 O.S. § 991a, 47 O.S. § 1-134, & Hughes v. State, 535 P.2d 1023

Current as of June 8, 2018