Attacking Actual Physical Control

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In Florida, DUI (Driving Under the Influence) is a serious offense. While the term implies driving under the influence, it’s essential to understand that a person doesn’t necessarily have to be actively driving to be arrested and convicted of a DUI charge. There are two ways someone can be found guilty of DUI:

• Driving: The most straightforward way is when a person operates a vehicle while impaired by alcohol or drugs.
• Actual, Physical Control: Here’s where it gets interesting. Even if a person isn’t actively driving, they can still be arrested and convicted of DUI if they are in actual, physical control of the vehicle while impaired. 

This means that being near the car or sitting in the driver’s seat can be sufficient grounds for a DUI charge, even if no one observes them driving. Common scenarios where this might occur are when the vehicle is parked, where one is "sleeping it off", or after an accident.

Several factors come into play when determining whether someone had actual, physical control of the vehicle:

• Proximity to the Driver’s Seat: How close the suspect is to the driver’s seat matters. If they’re right by the wheel, it strengthens the case for DUI.
• Key Location: Where the keys are located matters too. If the keys are within easy reach, it suggests control over the vehicle.
• Vehicle Operability: Whether the vehicle is operable or not is crucial. If the engine can start, it reinforces the argument for DUI.

These nuances have been discussed in numerous cases, shaping the legal landscape around DUI convictions in Florida. So, even if you’re not actively driving, remember that being in control of a vehicle while impaired can lead to serious consequences.

However, based on the factors above and some "extra-legal" factors (e.g. sympathy), these cases can present strong arguments for acquittal. Many actual physical control cases are very sympathetic. Juries tend to be more understanding to someone who makes the arguably responsible decision to sleep it off in their car. In addition, there is no driving pattern to be introduced into evidence, weakening the State of Florida's case. When charged with a DUI in and actual physical control scenario, it's important to find the best DUI lawyer for your case who can help develop a strategy which serves your case's facts.

At The Law Office of Sean Clayton, PA, our dedicated team of attorneys specializes in providing vigorous defense for DUI cases in Fort Lauderdale, Miami, and West Palm Beach. Our primary objective is to achieve the best possible outcomes for our clients, often resulting in complete dismissal of charges or reduction to the lesser offense of reckless driving.

Additionally, we offer invaluable guidance to our clients throughout the administrative proceedings with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). Our advice includes strategic approaches that may enhance their chances of a favorable resolution. Ultimately, our goal is to assist clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI arrest in Fort Lauderdale or anywhere in South Florida, you will encounter two distinct cases. First, there is the administrative case with the DHSMV, which focuses on the suspension of your driver’s license. The second is the criminal case which unfolds in the courts. Our experienced DUI lawyers handle both types of cases across South Florida and can provide expert guidance on the best course of action for your situation.

We strongly encourage anyone accused of DUI with property damage to consult with an attorney early in the process. For assistance in selecting the right attorney, consider reviewing our Tips for Selecting a DUI Attorney. 

In the Florida Standard Jury Instructions, they define "Actual Physical Control" as:

"... 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."

The words "in or on" the vehicle are clear in their definition. But, where "in" the vehicle are we talking about? Is the word "on" only for open cockpit designs, like motorcycles and lawnmowers (you can get a DUI on a horse, even) Naturally the driver's seat comes to mind and most courts have clearly determined that position to support a DUI charge, particularly if the keys are nearby. Can you imagine, though, all the other possible scenarios where someone is "in" or "on" a vehicle?

If someone is lying across a front bench seat, for example, wherein only part of them is in the driver's seat, is that actual physical control? The back seat is clearly "in" a vehicle, but does someone asleep in the back have the "capability to operate the vehicle."  If I'm just leaning against the car after an accident wiht the keys in my hand, am I "on" the vehicle? If I get out and lay on the hood, I am technically "on" the vehicle. What does the law say about that? If two drunk people are in asleep in the back, but the keys are in the ignition, can police charge both with DUI?

Believe it or not, not every scenario has been litigated and, if they have, they have not produced a written opinion. Each scenario, even if similar, can turn on nuanced factual distinctions. A DUI lawyer can use these facts to secure dismissals and acquittals in certain cases.

The position of the car keys in an Actual Physical Control case can also make a huge difference. Obviously, in the ignition is the worst place they can be found.  But, that is not usually the case when using this defense.  Often times, the keys are elsewhere like in a center console or glove compartment. Other times the accused left it outside in an obvious place, like a wheel well or other hiding place. One would think that a key removed from the vehicle wouldn't count.  Unfortunately, court opinions, again, have created a very blurry line in the area of key position. In the right set of facts, though, a skilled DUI lawyer may be able to convince a judge or jury that the position of the keys removes the case from being one of "Actual Physical Control."

The next curious line of cases will have to do with key fobs and start button systems.

It may be a defense to Actual Physical Control if the vehicle was inoperable at the time the individual was seen at the wheel. Florida Standard Jury Instructions say:

"It is a defense to the charge of Driving Under the Influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable.  Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty.  However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt."

Basically, this comes up in two scenarios. After accidents or when the gas ran out while the vehicle was sitting. 

After an accident, it can be unclear who was operating a vehicle. When the cops pull up and there is only one person attending a vehicle, there is a tendency to assume that was the driver. If that person never gets to tell their story, perhaps because they were taken away by ambulance, and nobody else can confirm the identity of the driver at the time of the accident, there may be a huge hole in the State of Florida's case. This is often called the "ghost driver" defense. It's entirely possible that a third party, unknown to anyone at the scene, was the actual driver and fled before anyone saw them.  Then, the accused was left behind to be wrongly accused. This scenario plays out more often than one might believe.

Another scenario is one in which a person is found in a stopped or parked car that is out of gas.  The police may very well arrest them on an assumption. But, it is always the State of Florida's burden to prove "Actual Physical Control," beyond a reasonable doubt.  A good DUI lawyer holds them to their burden.