Assigning Memorandum: Closed-Research Memo Project
Your final project in this course will be to draft an office memorandum using the facts and law included
in these materials. You will do no outside research; you will use only the facts, cases, statute, and other
materials included in this packet. You will follow the office-memorandum format discussed in the
assigned PowerPoint lecture and associated reading materials.
You should be able to write an excellent memo—including Issue Statement, Brief Answer, Statement of
Facts, Discussion, and Conclusion—in fewer than 1800 words. Please use double spacing, 13-point font,
and one-inch margins on all sides.
You are an intern in a DUI-defense firm. Your supervising attorney has sent you the following email.
From: Thomas Tetrazzini, Partner
Sent: Today
To: Student Intern
Subject: Memo needed on actual physical control in Berlinski DUI case
Dear Intern,
I need you to write me an office memorandum addressing whether a court is likely to
conclude that our client, John Berlinski, had actual physical control over his vehicle for the
purposes of the DUI statute.
I attach the following documents, which contain the relevant facts:
 narrative supplements to the police report
 transcript of interview with Mr. Berlinski
Do not conduct any research; I have attached the following relevant statute and cases:
 Ariz. Rev. Stat. § 28-1381
 State v. Love, 182 Ariz. 324 (1995)
 State v. Dawley, 201 Ariz. 285 (2001)
 State v. Rivera, 207 Ariz. 69 (Ct. App. 2004)
 State v. Zaragoza, 221 Ariz. 49 (2009)
I also attach a couple of secondary sources as background. Do not cite to the secondary
sources in your memo; you must rely solely on primary authorities.
Printed On: 09/20/17 Folder: INCIDENT REPORTS Application: tucsonpd
TUCSON POLICE DEPARTMENT REPORT NO.____________________
POLICE REPORT NARRATIVE
PAGE __3__ of __4____
FBI CLASSIFICATION
Driving While Intoxicated
LOCATION OF INCIDENT
777 E. 9th Street
At approximately 0145 on 08/20/17, I received a report of a suspicious vehicle parked on a residential
street in the Iron Horse neighborhood of Tucson. I responded to 444 E. 9th Street, where I observed a 1978
Volvo station wagon license number xdpigy parked inside the painted lines in a marked parking space. I
noted that, although posted signs clearly indicate that Tucson municipal code requires vehicles to back in
to these parking spaces, the subject Volvo was parked with its front wheels almost touching the curb. I
also noted that the vehicle’s tail-lights were on. It also appeared that the vehicle’s headlights were on.
As I approached the subject vehicle on foot, I could hear that the engine of the vehicle was running. I also
observed that the right rear tire appeared to be significantly deflated.
I approached the vehicle from the driver’s side. When I shone my flashlight in the front window, I
observed keys in the ignition. I also observed a white male reclined on his back in the front driver’s seat.
I used my department-issued flashlight to knock on the window and said “excuse me, sir,” repeatedly in
an attempt to rouse the subject male inside the vehicle. After a few minutes, he sat up, briefly hitting his
head on the roof of the vehicle. As subject lowered the driver’s side window, I could hear the sound of the
air conditioning operating inside the vehicle and music coming from the vehicle’s radio. I also noted a
strong odor of alcohol. As the subject male began to speak, I immediately noticed the smell of alcohol on
his breath and that his eyes were red, bloodshot, and watery. I asked the subject male for his driver’s
license. He removed his wallet from his front pocket, removed a stack of cards from that wallet, and
began searching through the stack of cards. After a few attempts, he was able to locate and hand me his
driver’s license (#AZkdugyntr), which identified him as John Berlinski. I also asked Mr. Berlinski to
produce the registration and insurance for the vehicle. After some searching in the glove compartment, he
was able to locate and provide those documents. I then asked Mr. Berlinski if he had consumed any
alcohol recently. He said that he had been drinking whiskey at his girlfriend’s house, which was located a
few blocks away. I asked how much whiskey, and Mr. Berlinski responded “I lost track after the fourth
shot.” I noted that his speech was slurred. I asked him why he was in his vehicle. He said “my girlfriend
kicked me out.”
I asked him to exit the vehicle and step to the sidewalk so that I could administer several field sobriety
tests to her [Description of field sobriety tests omitted] Based on the results of the field sobriety tests, I
used my radio to contact another officer to administer a breathalyzer test. Officer Horatio Gonzales
TUCSON POLICE DEPARTMENT REPORT NO.____________________
POLICE REPORT NARRATIVE
PAGE __4__ of __4____
responded. Mr. Berlinski consented to the breathalyzer test, stating, “heck, yeah, I’m drunk!” The test
obtained two breath samples of 0.12 and 0.12 at 0230.
I arrested Berlinski at 0235 for being in actual physical control of a vehicle while under the influence of
an intoxicating liquor and for having an alcohol concentration of 0.08 or more within two hours of driving
or being in actual physical control of a vehicle. I transported him to the station where he was booked
along with his property. The vehicle was towed and stored by Jeremy’s Towing.
I recommend that a copy of this report be forwarded to the County Attorney’s Office for review and
prosecution of Berlinski for:
 being in actual physical control of a vehicle while under the influence of an intoxicating liquor
and
 having an alcohol concentration of 0.08 or more within two hours of driving or being in actual
physical control of a vehicle.
Reporting
Officer:
Alvarez
PAYROLL NO.
0428456
DATE
08/20/17
TIME
03:30
DIVISION
10
Partial transcript of interview with John Berlinski
Q: So, John, tell me what happened the night you were arrested.
A: I was at my girlfriend’s house, and I had brought over some whiskey that a friend of mine had
made. My girlfriend and I had been arguing, and I guess I started doing shots. I remember having at least
four shots, but I probably had more than that. So, like I said, we were arguing, and I said some mean
things about my girlfriend’s mom. My girlfriend got really mad and told me to leave. I told her I was too
drunk, couldn’t I just sleep on her couch and go home in the morning? She started yelling, “get out! Get
out!” over and over. I got worried that the neighbors were going to hear and call the police, so I left. But
then . . .
Q: Sorry to interrupt – how far is your girlfriend’s house from your house?
A: About five miles.
Q: Ok, so you left her house. Then what did you do?
A: Well, I was going to call my buddy and see if he could come get me, but I realized I left my phone
somewhere – I guess inside my girlfriend’s house. I knocked on the door a few times, but she didn’t
answer.
Q: Then what did you do?
A: Well, I figured I’d find my car and sleep in there until I was sober enough to drive.
Q: And how far away was your car?
A: Oh, just around the corner.
Q: What did you do when you reached your car?
A: I got inside and put the seat back and was trying to fall asleep, but it was so hot – it had been
like 105 that day, and it was probably over 85 that night. So I turned on the engine and started the airconditioning on the coldest setting and turned the fan on high. And then I guess I passed out.
Q: Do you know why the car’s headlights were on?
A: I must have turned them on. I don’t know.
Q: Did you have any plan to drive that night?
A: No. No way. I figured I’d sleep there until morning and then drive home when I was sober.        

Write Closed-Research Memorandum

Below is my draft. I not sure about Answer Brief. If I am wrong, that lead to Wrong both part below. Help review and continue write. the discussion part follow VREAC

Question Presented

Under Arizona Revised Statute, Ariz. Rev. Stat. § 28-1381, does a court likely conclude that John Berlinski had “actual physical control” over his vehicle when he was found asleep in his car with the engine running, the headlights on, the air conditioning operating and a BAC of 0.12, even though he claims he intended to sleep in the car until he was sober enough to drive home?

Brief Answer

Probably yes. An Arizona court would likely conclude that John Berlinski had “actual physical control” of his vehicle, despite his intention to sleep until sober. Although, the term "actual physical control" is not clearly defined in the Arizona’s DUI Statute.  However, relevant case precedents such as State v. Love, 182 Ariz. 324 (1995) and State v. Dawley, 201 Ariz. 285 (2001) interpreted this term means as the ability to operate a vehicle, even if the person is not actively driving. Based on this interpretation, Berlinski could be deemed to have had "actual physical control" over his vehicle. However, if just based on the mere interpretation of "actual physical control" is not sufficient for a conclusion. Therefore, based on the court’s decision in State v. Zaragoza, 221 Ariz. 49 (2009), the "totality of the circumstances" test must also be considered when determining whether an invidual have "actual physical control" of their vehicle. the finder must also consider the "totality of the circumstances" test. Combining the interpretation of “actual physical control” and factors such as the keys in the ignition, the running engine, and the operating air conditioning could indicate that he acutually had the capability to operate his vehicle, despite claiming an intention to sleep. Finally, Berlinski's BAC of  0.12 surpasses Arizona's legal limit of 0.08, violating Ariz. Rev. Stat. § 28-1381 (A)(2).

Fact Statement

Our client, John Berlinski, was arrested for being in actual physical control of a vehicle while under the influence of an intoxicating liquor and for having an alcohol concentration of 0.08 or more within two hours of driving. Mr. Berlinski's goal is to have the charges against him dismissed or reduced.

On the incident's evening, he brought some whiskey to his girlfriend's house, intending to enjoy it with her. However, after an argument, he drunk the whiskey himself. He admits to consuming at least four shots or possibly more and got drunk, therefore, Berlinski's girlfriend asked him to leave due to his intoxication. He itended to call a friend to pick him up, but realized that he had left his phone inside his girlfriend's house. Unable to retrieve his phone and too drunk to drive home, he decided to sleep in his car until morning, parked around the corner from his girlfriend's house. And due to the hot weather, he turned on the car's engine to use the air conditioning to sleep. He had no intention to drive that night and planned to go home once sober in the morning.

At approximately 01:45, a police officer found John Berlinski, parked in a manner contrary to the posted sign rules. At that time, his car's engine was running, the headlights were on, the air conditioning was active, and the right rear tire appeared significantly deflated. Upon approaching Berlinski’s car, the officer observed keys in the ignition and Berlinski reclined on his back in the driver's seat. The police officer had to repeatedly wake Berlinski before he responded. Upon waking, he lowered the driver’s side window and police officier found Berlinski have some signs that Love was drunk, like slurred speech, red and watery eyes, as well as the smell of alcohol from his breath. He admitted to consuming whiskey at his girlfriend's house and claimed to have "lost track after the fourth shot." After a few field sobriety tests and a breathalyzer test required by police officier, Mr. Berlinski obtained two breath samples of 0.12, then was arrested for DUI statute

Discussion

Opening conclusion: Under Ariz. Rev. Stat. § 28-1381 (A)(2) and precedent case, an Arizona court would likely conclude that John Berlinski had "actual physical control" of his vehicle while under the influence of alcohol, despite his intention to sleep until sober.

Rule: A person is in "actual physical control" of a vehicle under the influence of alcohol if they have the ability to operate the vehicle, even if the person is not actively driving. See State v. Love, 182 Ariz. 324 (1995);State v. Dawley, 201 Ariz. 285 (2001); State v. Zaragoza, 221 Ariz. 49 (2009).

Explaination: 

The interpretation of "actual physical control" is not specific in the Arizona’s DUI law. This term is determined based on two elements, including determined of relevant precedent case and and the "totality of the circumstances" test applied by the court.

This interpretation was first established in State v. Love, 182 Ariz. 324 (1995). In this case, the defendant, Love, was found asleep in the driver's seat with the engine running, the keys in the ignition. He failed the officer's field sobriety tests. Despite not actively driving or being conscious, the court concluded that Love had "actual physical control" of the vehicle. The court's reasoning was based on the fact that Love could have moved his car at any time despite being unconscious. The court also emphasized that a high-BAC individual who can operate a vehicle is a public safety risk, whether asleep or awake, and therefore can be considered to be in "actual physical control" of the vehicle.

In State v. Dawley, 201 Ariz. 285 (2001), the court expanded on this interpretation. The case involved a dispute over a jury instruction that defined "actual physical control" as simply having the "apparent ability to start and move a vehicle." The court found this instruction to be incomplete because it did not mention the importance of considering all the surrounding circumstances. Therefore, the court ruled that the trial court should provide a more comprehensive instruction that incorporates the "totality of the circumstances" test

However, just base on the fact that the potential to operate a vehicle does not suffice to claim "actual physical control". This was clarified in State v. Zaragoza, 221 Ariz. 49 (2009), where Zaragoza, found asleep in a running car but in the passenger seat with no intent to drive, was ruled not to be in "actual physical control".

Application: 

 

Conclusion

Base on