How Can I Get a DUI if I Wasn’t Driving?

I recently saw this question posted on a local website and thought it would be a good subject for this week’s contribution. In Florida, you can indeed get a DUI even if you weren’t found driving. In this post I am just going to address one of the elements of a DUI. The first element the State must prove in any DUI case is that the Defendant was driving or in actual physical control (“APC”) of a vehicle. The phrase “actual physical control” is the vehicle, so to speak, for getting convicted of a DUI without driving.

According to the Supreme Court of Florida, “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 or she is actually operating the vehicle at the time.” Fla. Std. Jury Instr. (Crim.) 28.1. In fact, this is the definition of driving as applied in all Florida traffic statutes, which means one can get ticketed or charged with almost any driving offense without having ever been observed driving. F. S. § 316.003.

Perhaps the two most common scenarios where one may see APC used in a DUI case are when a person has either been involved in a traffic crash or was found sleeping in his or her vehicle. In Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988), the Defendant was asleep in the vehicle with the keys in the ignition. In this case, the appellate court overturned the trial court’s dismissal of the case by finding that the Defendant could have woken up and driven way, which meant she was in actual physical control of the vehicle. This is a common DUI scenario and a well settled legal conclusion.

By contrast, in Jones v. State, 510 So.2d 1147 (Fla. 1st DCA 1987), the Defendant was a passenger in her sister’s vehicle, which broke down on the side of the road due to an electrical failure. Her sister walked home while she slept in the vehicle. She was initially convicted under the theory that she was in actual physical control of the vehicle. The court overturned her conviction and stated a person ought not be convicted of DUI “where the vehicle’s mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused.” Id. Now distinguish this with a vehicle with temporary mechanical problems like running out of gas, a flat tire, or a dead battery. In these instances, APC will generally be upheld.

Now, this situation is not limited to circumstances where you are observed still inside the vehicle. You can be considered in actual physical control of a vehicle even if you are found outside in close proximity to the vehicle. For example, in Alfons v. D.H.S.M.V., Case No. 2013-11474 (7th Cir. Feb. 3, 2014), the Defendant was found in APC for pumping gas outside the vehicle with the keys on the floorboard. Likewise, in, Simon v. D.H.S.M.V., Case No. 14-000061AP-88 (Pinellas Co. March 26, 2015), the Defendant was scene outside the vehicle with the keys sitting on a barrier next to her and the court still found APC.

When reviewing this situation, the courts will employ a totality of circumstances test, so there is no formula for separating yourself from actual physical control of your vehicle; however, it appears from Jones, there are three key things that are certainly relevant: 1) whether there is actual or constructive possession of the keys; 2) proximity to the driver’s seat; 3) and operability of the vehicle. This last point has been examined in a couple different ways. In Jones, the court considered whether the vehicle was incapable of movement except by an outside agency, while Feliciano v. D.H.S.M.V, questioned whether the Defendant will have the future ability to operate the vehicle. Case No. 16-2012-CA-11325 (Fla. 4th Cir. Feb. 14, 2014). The key is that the locations of the keys is clearly not the only relevant issue. People can be convicted if the keys are in the ignition, if the keys are on the floorboard, in your pocket, or in the other seat.

DUI laws are generally constrained in favor of the broad policy of public safety rather than the concern for any individual’s liberty. If you are facing a DUI charge and you were not driving at the time, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.

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