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Actual Physical Control DUI

(or, when doing the right thing gets you arrested...)

Imagine having a few drinks with friends, it’s late, you stagger to your car to drive home--but something happens. You get to your car, and realize that a night of two-for-one tequila shots has affected you a bit more than anticipated. So, you make the right decision not to drive, and simply stay in your car to sleep it off in some dark corner of the parking garage. Nothing illegal about that, right? RV owners do this on a daily basis.

“Tap tap tap”. You’re awoke by a knock on your car window, right where your ear was pressed up against the glass. It’s the police. You wake up, roll down the window, and the officer catches a blast of the odor of alcohol. The cop asks you to step outside the car to perform some field sobriety tests. Eventually, a DUI arrest occurs.

But wait. No driving. Just sleeping in your car, a common thing for those traveling in their RV, so why is the officer singling me out--because I’m not wealthy enough to own an RV? What’s the problem?

The problem is that DUI law in the State of Florida allows for a conviction for driving under the influence even though the police officer essentially woke you up from a nap. The officer doesn’t have to prove “driving”, as might be expected. “Driving” Under the Influence is not necessary the correct term. The State need only prove that a citizen has “actual physical control” of the car while under the influence of alcohol or drugs.

Historically, actual physical control issues targeted DUI accident cases. A common scenario involves a car wrapped around a telephone poll, with the owner of the car staggering nearby the vehicle. Police arrive, and no one is driving the car, no witnesses saw who drove the car. With actual physical control laws, the officers can make a case that the person hanging out near the wrecked vehicle, who happens to own the vehicle, and who happens to have possession of the keys to the vehicle, was probably in actual physical control of the car and thus a DUI investigation may proceed. Of course, who isn’t staggering after hitting a telephone poll?

Some courts have defined actual physical control as situations where a driver “could have at any time started the automobile and driven away”, thus factors such as the location of the ignition keys play a crucial role. (See Griffin v. State, 457 So. 2d 1070, at 1072 (Fla. 2d DCA 1984)). In Griffin, it was 2:30 a.m. when an officer noticed the Defendant in the driver’s seat of a car which was sitting in a traffic lane facing the wrong direction, lights on, keys in the ignition, foot on the brake, but the engine was not running. The court determined that these facts were sufficient circumstantial evidence that the defendant was in actual physical control of the vehicle, and upheld the guilty verdict for DUI. Id. at 1072.

However, the courts may not find actual physical control when the lone occupant of a stationary vehicle does not have possession of the ignition key. Mere presence in the driver’s seat, alone, is not enough. Much like real estate, the court’s analysis often hinges upon Location, Location, Location. The location of the car, the location of the keys to the car, and the location of the driver within the car. In one case, a driver was found guilty of DUI when found alone and unconscious in his vehicle parked in the emergency lane with no headlights on with the engine not running and car keys on the center console. Krivanek v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 702a (Fla. 6th Cir. Ct. June 19, 2003). In Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988), the defendant was sleeping alone, lying down in the front seat of his vehicle parked in a parking lot, keys in the ignition (in ‘off’ position), lights on, but the engine was not running. The court in Fieselman held that this was not sufficient to establish actual physical control of the vehicle, as required for the charge of being in control of vehicle while under the influence of alcoholic beverages.

The problem becomes more complex when an officer wakes a citizen sleeping in a car, only to discover a possible DUI case in the making. Does a person asleep have actual physical control of the car they’re sleeping in? What can the human body “actually” control while asleep? Obviously, breathing, heart rate, basic bodily functions—but don’t you have to be awake to be in control of a car? For example, how many people watch TV, fall asleep while watching with the remote control in hand? Would you say that the person sleeping on the couch had actual physical control of TV just because the remote remained in their hand? Actual physical control issues are handled on a case-by-case basis. You should call DUI defense attorney John Guidry to discuss your options. The call is free, the conversation is free, can’t beat it.

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