“I Was Just Sleeping It Off”: Why Doing the Right Thing Can Still Get You a DUI

By: John Guidry

Imagine having a few drinks with friends. It’s late. You stagger to your car to drive home. But then, you realize the two-for-one tequila shots hit harder than expected.

• The Decision: You make the responsible choice. You decide not to drive. You curl up in the back seat to sleep it off.
• The Logic: Nothing illegal about that, right? RV owners do it every day.

“Tap, Tap, Tap.” You wake up to a flashlight in your face. It’s the police. Even though the car never moved, you are asked to step out. Moments later, you are arrested for DUI.

The Question: Why is the officer singling you out for napping? The Answer: Because in Florida, you don’t have to be “Driving” to be convicted of “Driving Under the Influence.”

Did you get arrested while parked and sleeping?

You might have a defense based on “Actual Physical Control.” Call John today at (407) 423-1117.

The Legal Trap: “Actual Physical Control”

The State does not need to prove the car was moving. They only need to prove you had “Actual Physical Control” (APC) of the vehicle.

• The Theory: If you could have started the car and driven away at any moment, you are a danger to the public.
• The Accident Scenario: Historically, this law was used for accidents where the driver was found staggering outside a wrecked car. Since no one saw them driving, APC laws allow the police to assume the person with the keys was the driver.

But now, police use it to arrest responsible people who are sleeping in parking lots.

Location, Location, Location (The Keys Matter)

Courts analyze APC on a case-by-case basis. Much like real estate, it comes down to Location.

• Where was the car?
• Where were the keys?
• Where was the driver?

Case #1: The “Ready to Launch” (Griffin v. State)

• Facts: Driver found at 2:30 AM in the driver’s seat, facing the wrong way in a traffic lane. Keys in ignition, foot on brake, but engine off.
• Verdict: Guilty. The court said he could have started the car instantly. (Griffin v. State, 457 So. 2d 1070).

Case #2: The “Center Console” (Krivanek)

• Facts: Driver found unconscious in the emergency lane. Engine off, no lights. Keys were on the center console.
• Verdict: Guilty. Even though the keys weren’t in the ignition, they were close enough to grab and go.

Case #3: The “Parking Lot Nap” (Fieselman v. State)

• Facts: Driver sleeping lying down in the front seat in a parking lot. Keys in the ignition (off position), lights on, engine off.
• Verdict: Not Guilty. The court ruled this was not sufficient for APC. He was clearly using the car as a shelter, not a vehicle. (Fieselman v. State, 537 So. 2d 603).

The TV Remote Analogy: Does a sleeping person have “control” of anything? If you fall asleep on the couch with the TV remote in your hand, do you have “Actual Physical Control” of the TV? Of course not. You are asleep. Yet, the law often treats a sleeping driver as if they are actively navigating traffic.

John’s 2026 Update: The Keyless Fob Trap

Note: In the cases above, the location of the physical key was crucial. In 2026, the “Key” is a radio signal.

1. The “Push-to-Start” Problem In 1988 (Fieselman), you had to physically put the key in the ignition.

• The 2026 Reality: If you have a Keyless Fob in your pocket (or even in the trunk), the car detects it.
• The Prosecution: They argue that because the “Start” button is live, you have APC even if you are sleeping in the back seat. The car is technically “on” and ready to drive.

2. “Phone as a Key” (Tesla/Ford) Many people use their phone to unlock and start the car.

• The Defense: If your phone battery was dead, or if you disabled Bluetooth before sleeping, we can argue you lost the ability to start the car. A dead phone = No Key = No APC.

3. The Faraday Bag Defense If you plan to sleep it off in 2026:

• The Tip: Buy a Faraday Bag (signal blocking pouch). Put your key fob or phone inside it and toss it in the trunk or glove box.
• The Argument: If the police wake you up, we can prove the car could not have started because the signal was blocked. You physically had to retrieve the key from a sealed bag to drive, proving you had “relinquished control.”

Sleeping is Not Driving

If you made the right choice to sleep it off, you shouldn’t be punished like a criminal. We know how to argue the nuances of “Control” to distinguish a napper from a driver.

Call me at (407) 423-1117. Let’s wake up the judge.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.