But I wasn’t driving – how can I get a DUI?

But I wasn’t driving – how can I get a DUI?

As a DUI defense attorney, I often hear from client’s facing a DUI charge say: “But, I wasn’t driving, how can I get a DUI?”  

In Florida, you can be arrested for simply being in actual physical control of your vehicle while under the influence of alcohol or substances.  Those not aware of the actual physical control law incorrectly assume that in order to be arrested for DUI, a person must be actually driving a vehicle.

Here is the common scenario:  You go out with friends for the evening and have a few drinks.  You realize you’ve had one too many and decide to wait it out in your car in the parking lot while you sober up.  Or, perhaps while driving home, you realize you’ve had too much to drink, so you pull over on the side of the road to sleep it off.

While you might think you are doing the responsible thing – or may even believe you are protecting yourself from a DUI charge, this is actually a criminal offense in Florida. This common scenario can lead to a charge of DUI by actual physical control of your vehicle.  The DUI laws in Florida allow for a conviction for driving under the influence even though you weren’t actually “driving.” 

What is Actual Physical Control in DUI cases?

 “Actual physical control” of a vehicle means the person must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether the person is actually operating the vehicle at the time. 

 There are factors considered to determine if a person is in actual physical control, including:

• Either actual or constructive possession over the key to the vehicle or proof the vehicle can operate without a key.  (i.e. keys in the ignition; keys are on the driver’s person or in his pocket; keys are in close proximity to the driver in or on the vehicle so that the driver can easily access the key);
• If the person is able to drive the vehicle at a moment’s notice;
• The location of the driver in or on the vehicle (i.e. – in the driver’s seat, passenger’s seat, outside the vehicle, or some other area of the vehicle);
• If the engine was running, lights were on, and if the hood was warm;
• If the car was found at a location that it could have been driven to; and
• Whether the vehicle was operable

 Some examples of actual physical control found by courts include:

–       a person who had been drinking that sat in the front seat of his vehicle with the keys in hand or in his pocket;

–       the person was sleeping in the back seat of the vehicle with the keys;

–       the person was sleeping in the vehicle and the keys were located outside of the vehicle;

–       Cases involving cars that had a flat tire or a cases where the battery had died.  Although the vehicle was technically inoperable at the time of investigation, courts have held that the driver can still be found in actual physical control based on circumstantial evidence that the vehicle somehow got to that location when it was operable;

–       Cases when a driver “could have at any time started the automobile and driven away”;

–       Walking away from a recently crashed car, and sitting in a car on the side of the road that was stuck in a ditch.

These examples show you that even if you are sitting in your parked car attempting to sleep off the effects of a night of drinking, and even if the car is turned off and in park, you still can be arrested and charged with a DUI. Even placing the keys outside the car does not save you from being in actual physical control of the vehicle and charged with DUI. Thus, the often repeated and old adage that you can put the keys on the roof of the car and sleep it off in the passenger’s seat simply will not work in Florida to avoid a DUI charge.

 How can You Avoid This Mess?

You should be careful to not drive when you have been drinking.  Florida has tough penalties for DUI, and those penalties continue to get tougher.  If you you’ve had too much to drink, don’t drive.  And, as you can see, it’s also not a good idea to sleep it off in your car. You may think that you are making a responsible choice by not driving home, but the law treats it basically the same.  The best advice is to avoid the situation entirely by having a designated driver, or calling for a cab, or a friend or family member to come get you.  The consequences of a DUI conviction are extremely costly, and can easily be avoided by finding a safe ride home or having a designated driver.

Should you have a question or concern about a DUI charge you or someone you know is facing, one of our attorneys would be happy to answer any of your questions. Call us at (813) 534-0393 or email us at [email protected].