Written by attorney Thomas Klemens Almquist

DUI in Florida: Actual Physical Control- When Driving Isn't Driving

In Florida, and many other states, you don’t always have to be driving a car to be convicted of Driving Under the Influence. Yes, even if no one actually sees you driving, you can still be arrested, charged and even convicted of DUI. Part of the DUI law in Florida is that it’s illegal to be driving or “in actual physical control" of a vehicle when you’re impaired. What does “actual physical control" mean?

The legal definition is that “the defendant was in or on the vehicle and had the apparent ability to operate it". So if a cop finds you sitting in the driver’s seat with the keys in the ignition, the State of Florida is saying, “well, that’s close enough to driving".

The original intention of the law was to be able to punish drunk drivers who got in a crash. The police would be investigating it, know that a driver was impaired, but couldn’t charge them with DUI. So the legislature added the actual physical control language to the law so they could.

Whatever you may think of the intent of the law, it has since been expanded well beyond that. Courts have now said they want to prevent DUIs from happening before drunk drivers strike. To figure out if a defendant is in actual physical control, most cases look to:

· where the car keys were located, whether in the ignition, the defendant’s pocket or somewhere else

· if the engine was running, the lights on, and if the hood was warm

· if the defendant was able to drive the vehicle at a moment’s notice

· if the car was found at a location that could be driven to

· whether the car was operable

Courts have found that defendants were in actual physical control when they were: sleeping in the front seat with the keys in their pocket, walking away from a recently crashed car, and sitting in a car on the side of the road that was stuck in a ditch.In that first case a normal person would think that if they were sleeping they didn’t have the “apparent ability to operate" the vehicle, but the Court disagreed. The same thing goes with the second one- how could he be in control of that vehicle after he left it? And in the third one, the car was clearly inoperable, but the Court basically said that it had to get there somehow, and the Defendant must have driven it there, so he must have been guilty of DUI.

The point of all this is that of course you should be careful to not drive when you drink. The State of Florida keeps increasing the penalties for DUI, and keeps making it harder to comply with the law. If you find that you’ve had too much to drink, don’t drive, but it’s also not a good idea to sleep it off in your car! You may think that is the more responsible choice than driving home, but the law treats them essentially the same.

If you have been arrested for DUI, or any other crime, there are aggressive defense tactics that can be taken. It isn’t all lost no matter if you’re charged with a DUI based on driving the car, or being in actual physical control. Either way, you need a good attorney on your side. Call today for a free consultation so we can talk about your case and decide what to do next.

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