Question: What is physical control in Wisconsin? How can it be proven? What are some defenses against it?

Answer: So physical control is often talked about in OWI cases because driving a vehicle is defined as exercising physical control of a motor vehicle while it is in motion. Now, it matters less sometimes because operating a vehicle is the physical manipulation of any of the controls of a motor vehicle necessary to put it in motion. So it doesn’t have to be actual driving of the vehicle. But prosecutors will try to prove physical control by simply showing who was driving the vehicle down the road. Some defenses can be that they have arrested the wrong person, particularly if an officer did not see the person driving or operating the vehicle.

We’ve even seen some cases charged where a person in the passenger seat of the vehicle driving down the road grabs the steering wheel and yanks on it and that person being charged as driving because they’ve exercised physical control over the vehicle. That can be a bit iffy, but those things are out there. Physical control is also talked about in cases where possession of an item is the crime, such as with possession of drugs or possession of a gun if you have a prior felony conviction. Physical control is one aspect of possession, but a prosecutor would also have to prove that the person knew the item was present and illegal. So what you see there is if someone lends you a jacket and there’s a small bag of marijuana in a pocket of that jacket and you don’t know it’s there, you may have physical control over that but you are not guilty of possession of the marijuana. On the other hand if you have a small bag of marijuana and you stash it somewhere—you put it in the console of a vehicle or some other location—you could still be guilty of possession even though you may not have physical control over it at the time it is found.

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