Part 2: You Don’t Have To Be Driving To Get a DUI (Yes, you read this right)

(To read Part 1: Drinking and Driving is NOT a DUI (or a crime, for that matter, click here)

Remember when I said that Florida’s DUI laws apply to anyone “driving or in actual physical control of a vehicle”? Well, that means exactly what it sounds like: you don’t actually have to be driving to be arrested for DUI.

For most people, this realization is astounding. Think about it.  It is pounded into the public’s head: “Don’t drink and drive”–no mention of this actual physical control thing.  Look at the DUI law itself, titled “Driving Under the Influence.”  Fla. Stat. § 316.193. How misleading is that? Perhaps it should really be titled “Driving or in Actual Physical Control of a Vehicle While Under the Influence.” And those public service announcements that preach “Drive sober or get pulled over” are equally misleading considering that, as explained below, you don’t actually have to be driving to get a DUI.  It’s ignorance to these nuances in DUI law that can lead to an arrest in the first place, or at least massive confusion after arrest

So what is this concept of “actual physical control,” or “APC”?

Well, during any criminal trial for DUI in Florida, the judge might instruct the jury that actual physical control of a vehicle means that the defendant was physically in or on the vehicle and had the capability to operate it, regardless of whether he or she was actually operating it at the time. Fla. Std. Jry. Inst. 28.1. Huh? Let’s take it in parts.

First, you don’t even need to be “in” the vehicle to trigger APC, you could just be “on” it.  I suppose that, in the most literal sense, that might conjure up images of someone standing on top of their car’s roof; and while that might qualify as “on,” so too might leaning “on” the car’s door.   And what to make of the “having the capability to operate the vehicle, regardless of whether he or she is actually operating [it] at the time” language?

Florida courts have held that, as a matter of law, just because a person is found asleep in the front seat of the car, even if it was lawfully parked, doesn’t mean that they don’t have “the capability to operate the vehicle.”  (Yea, I know.  That’s like saying that when you’re fast asleep in bed with the TV remote next to you, you have the “capability” of operating it.  As silly as that sounds, that’s the law).

So, the age-old “I’ll just sleep it off” routine is as ill advised as driving home–for purposes of avoiding a DUI, that is.   Whether you’re slumped over the steering wheel or comfortably reclined all the way back, it’s no matter.  That is evidence of APC.  The engine doesn’t even have to be running at the time either.  The car could be turned off, in park, and the keys in your hand, pocket, or center console.  All of that, the State will argue, is APC.

If you or a loved one are investigated for DUI based on actual physical control of a vehicle, there are some defenses to a DUI to keep in mind.  But their availability and viability might be an incredibly fact and caselaw intensive inquiry; one best reserved for a top DUI lawyer.   That aside, here’s some quick points to consider.

The most commonly referred to, but whose availability is exceptionally rare, defense to APC is “inoperability.”  Basically, the argument is that the vehicle was not capable of being operated– no matter what.  However, even though our criminal justice system usually hinges upon the prosecution having the burden of proof, here, inoperability is considered an affirmative defense; therefore, the State need not prove operability, but the defendant must prove  inoperability.  There are cases where a car was stuck in a ditch; allegedly ran out of gas; or where the battery was allegedly dead and the driver was waiting for a jump, all scenarios where inoperability was not an automatic defense.

In conclusion, you should all be aware that, in Florida, you don’t have to necessarily be driving to be exposed to the risk of a DUI arrest.  Perhaps the slogan should be modified to: “drive or lawfully park and sleep sober, or get pulled over.” Just a thought.

This article was published by Jordan Redavid, who was voted as one of the ten best DUI attorneys in Florida in 2015.  The contents of this article are not to be considered legal advice.  If you or a loved one were arrested for DUI, call our firm’s top DUI lawyer today to get a FREE consultation. 305-938-9939.