In the state of Florida, is it is possible to be charged with Driving Under the Influence (DUI) if you were not driving? What if you were just sitting in the vehicle? The answer is YES. Imagine if you will, the following scenario:
John was at a friend’s house for a party. He had several drinks and knew he should not drive home. So he does the responsible thing. He makes the decision to spend the night there. But first, he needs to contact a family member to explain why he will not be coming home. The music is just too loud inside, so he goes out to his car to make that call. He unlocks his car door, sits down in the driver’s seat, rolls down the windows to get some air, and sets the car keys on his lap.
Unbeknownst to John, a neighbor had just called the police because of all the noise. As police approach, they see John sitting in his car. They approach the vehicle to speak with John. When they reach the open window, they smell the strong odor of an unknown alcohol beverage coming from inside the vehicle. As John speaks to them, the odor intensifies. John has slurred speech. His eyes are bloodshot and glassy.
The officers believe that John is under the influence. They conduct a DUI investigation. They arrest John for Driving Under the Influence.
DUI in Florida
In the State of Florida, a person can be arrested and charged with DUI even if that person is not driving. This is Actual Physical Control (APC). A necessary element of any DUI charge is that the person be either “driving” the vehicle or “in actual physical control” of the vehicle. Taken straight from the Florida Standard Jury Instructions, “actual physical control” of a vehicle means “the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.”
While the facts contained herein are hypothetical, it is not uncommon that a person may decide to sit in their vehicle after drinking without having any idea of the possible consequences.
There are many different possible scenarios in APC cases. These are very fact specific cases, and one small fact could turn the whole case on its head, resulting in a dismissal. For example, if the vehicle is inoperable, this could be grounds for a dismissal. Also, how did the police handle the situation? Did the police violate the defendant’s rights? There are many 4th Amendment issues that can arise in this type of case. Careful review of the facts and complex legal analysis are key to securing the very best outcome.
If you or someone you know has been charged with DUI in Florida, call the Law Offices of Maria A. Albanese today. Put the experience of a skilled DUI defense attorney and former prosecutor to work for you!
Thank you for visiting. Look for more on APC DEFENSES, and other interesting legal topics, in our upcoming blogs.