specially concurring.
I believe it important to note that the order of dismissal, and therefore our review, was limited to the issue of actual physical control, even though the indictment charges both methods of committing the offense. In neither the trial court nor this court did the parties address the issue of whether appellee could be convicted of driving under the influence, apparently under the belief, as asserted by appellee in his motion to dismiss, that “[i]f the vehicle is not in motion in the presence of the arresting officers or other competent witnesses, there can be no conviction for ‘driving under the influence of intoxicating liquors.’ ” Just as Zavala has been limited to its facts on the issue of actual physical control, see, e.g., State v. Vermuele, 160 Ariz. 295, 772 P.2d 1148 (App.1989); State v. Superior Court, 153 Ariz. 119, 735 P.2d 149 (App.1987), I believe Zavala can and should be limited to its facts on the issue of driving under the influence.
In Zavala, the defendant and his vehicle were found by a Department of Public Safety patrolman in the emergency lane of a controlled access highway. The defendant was partially hanging outside the driver’s window, unconscious and intoxicated, but the vehicle was entirely off the travelled portion of the road and the motor had been turned off. The supreme court concluded without discussion that there was insufficient evidence that the defendant had been driving under the influence. Although it would be easy to infer from this holding, as the parties and the trial court apparently did here, that driving under the influence can only be proved by direct evidence, I do not believe that this was the court’s intention.
First, such a result would go well beyond what appears to have been the court’s only purpose, to permit drivers who recognize their impairment to pull entirely off the road and turn off their vehicles without fear of criminal sanctions. Because the statutory underpinnings for the court’s conclusion are tenuous at best, I see no reason to extend the decision to factual situations outside Zavala’s rationale.
Second, it would exempt this one offense from the general rule, applicable to far more serious crimes, that direct evidence is not essential and that a conviction may be based entirely on circumstantial evidence. See, e.g., State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982); State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981), cert. denied 459 U.S. 882,103 S.Ct. 180, 74 L.Ed.2d 147 (1982) (armed robbery, kidnapping and theft); State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980) (robbery and murder). Absent the Zavala decision and what I believe to be its erroneous interpretation below, there would be no question that this case could be submitted to the jury on the issue of driving under the influence. Reasonable jurors could infer from the circumstantial evidence that appellee drove the car up onto the curb prior to his discovery by the racquet club employee and that he was under the influence when he did so.
The Zavala public policy rationale is not advanced one iota by extending its reach to cases such as this where there is evidence from which a jury could conclude that an obviously impaired driver, rather than removing himself from a situation which would endanger the public, was making every effort to get his vehicle on the road. Indeed, Larriva would have succeeded but for apparently *67causing a single-car accident. In my view, Zavala does not and was not intended to apply beyond its facts to cases such as this. Accordingly, appellee’s prosecution may be properly grounded on driving while under the influence, regardless of whether he was in “actual physical control” of an immobilized vehicle.