Sleeping in your car after a few drinks may seem like the responsible choice. Many people assume they can’t be charged with DUI if they aren’t driving, but in Florida, they can.
Whether you live here or are visiting, it pays to understand how the state defines DUI. An experienced defense attorney can help you understand your options if you’ve been arrested.
Driving Is Not the Only Way to Commit DUI
Florida’s DUI statute, section 316.193, covers anyone who is driving or in “actual physical control” of a vehicle while impaired by alcohol or drugs, or with a blood or breath alcohol level of 0.08 or higher. That language lets prosecutors charge someone whose car wasn’t moving.
What “Actual Physical Control” Means
Florida’s standard criminal jury instruction explains the term: the accused must be physically in or on the vehicle and capable of operating it, even if they weren’t operating it at that moment. The engine doesn’t have to be running, and the car doesn’t have to be on the road.
Courts weigh the totality of the circumstances, for example:
- Whether you were in the driver’s seat
- Where the keys were
- Whether the engine, headlights, or air conditioning were on
- Whether the vehicle could actually be driven
Sleeping behind the wheel with the key in the ignition is a classic example, but small facts can change the outcome. In one reported case, a passerby shut off the engine and left the keys on the hood before police arrived, and the court concluded the driver was no longer in physical control.
The jury instruction also recognizes a defense when the vehicle was inoperable. That defense fails, however, if the person drove while impaired before the vehicle broke down.
When Police Arrive After a Crash
First-offense DUI is usually a misdemeanor. As a general rule, Florida officers can make a warrantless misdemeanor arrest only for an offense committed in their presence. Section 316.645 creates an exemption for crashes: an officer investigating at the scene may arrest a driver involved if the officer’s own investigation produces probable cause.
Prosecutors don’t need an eyewitness to the driving. Florida courts have upheld convictions based on circumstantial evidence, such as witness statements, vehicle registration, or the fact that the defendant was the only person present.
Florida’s accident report privilege, in section 316.066(4), generally keeps statements you make to help an officer complete a crash report out of a criminal trial. The privilege doesn’t cover what witnesses say. And once an officer shifts from a crash investigation to a criminal investigation, your statements can be used against you.
Possible Defenses
Because these cases turn on specific facts, there is often room to challenge them. Depending on the circumstances, a defense attorney may argue that:
- You were not in actual physical control, for example because you were in the back seat and the keys were out of reach
- The state can’t prove you were the one driving
- You were not impaired at the time you drove, such as when drinking happened after the car was parked
- The vehicle was inoperable
- The arrest itself was unlawful, for example, and when no crash occurred and only civilians, not police, saw you in control of the vehicle
The Stakes Are the Same
A DUI conviction carries the same penalties regardless of driving or only being in actual physical control. A first conviction can bring a fine of $500 to $1,000, up to six months in jail, and a 180- to 365-day license revocation. Penalties increase with a high blood alcohol level, a minor in the car, prior convictions, or injuries. Separately, your license is typically suspended at the time of arrest, with only 10 days to request a hearing to challenge that suspension.
Talk to a Florida DUI Defense Attorney
If you were arrested for DUI in Florida even though police never saw you driving, the details matter. Call Brian Casey Law to have an experienced DUI defense attorney review your case.