DUI Actual Physical Control

What happens if the police do not see you driving but arrest you for DUI anyway based on an allegation that you were in “actual physical control” of the vehicle?

If you were not in “actual physical control” of a motor vehicle, that defense could be raised to invalidate any administrative suspension of your driver’s license for violating Section 316.193, Florida Statutes.

The “actual physical control” defense can also be raised in court as a defense to the criminal charge of driving under the influence of drugs or alcohol.

Common factual scenarios in which “actual physical control” is alleged might include:

  1. falling asleep on the roadway at a stop sign or traffic light;
  2. pulling the vehicle over to the side of the road or a parking lot to “sleep it off”;
  3. sitting in the driver’s seat while the car was stationary but without any intention of driving; or
  4. sitting in a broken down or inoperable vehicle without any ability to drive the vehicle.

Attorney for DUI Actual Physical Control Cases in Florida

If you were arrested for DUI, even though the police did not see you driving, contact an attorney to discuss the actual physical control defense.

We can help you demand the “formal review hearing” to contest the administrative suspension and represent you in court to fight the criminal charge.

In many of these cases, your attorney might file a motion to suppress any evidence gathered due to the arrest if there was insufficient evidence that you were driving or in actual physical control.

Contact us to discuss any DUI defenses that might apply in your case. Sammis Law Firm has offices in downtown Tampa, New Port Richey, and Clearwater.

Call 813-250-0500.

Florida’s Definition of “Actual Physical Control” in Florida

In these cases, it might be undisputed that the person arrested was not driving, but the lack of evidence of actual driving does not necessarily preclude a DUI arrest or prosecution.

In Griffin v. State, 457 So. 2d 1070, 1072 (Fla. 2d DCA 1984), the court discussed the intent of the Florida legislature when defining the crime of driving under the influence to include not only driving but also exercising actual physical control of a vehicle while under the influence was “to enable the drunken driver to be apprehended before he strikes.” Id. at 1072.

The Griffin court held that “an intoxicated person seated behind the steering wheel” is in actual physical control of the vehicle because a legitimate inference can be drawn that “he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away.” Id.

According to the court in Baltrus v. State, 571 So. 2d 75, 76 (Fla. 4th DCA 1990), “the [Griffin] opinion implies that each reason alone would be sufficient to affirm the defendant’s conviction.”) (emphasis added).

In Fieselman v. State, 537 So. 2d 603, 606 (Fla. 3d DCA 1988), the court concluded that “Griffin does not stand alone in emphasizing that evidence that the defendant was found sitting behind the wheel of the vehicle is a circumstance heavily supporting a finding that the defendant was exercising control over the vehicle.”

Additionally, the court reasoned that “[o]ther courts reaching the same result as Griffin have similarly pointed to the defendant’s upright position behind the wheel as an important part of the calculus in determining the question of the defendant’s actual physical control over the vehicle.” Id.

Factor Analyzed in “Actual Physical Control” DUIs in Florida 

What happens if an officer did not witness the accused driving the vehicle? In those cases, the officer must have witnessed the driver in actual physical control of his vehicle for the arrest to be lawful.

To have actual physical control of a vehicle, the driver “must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he is actually operating the vehicle at the time.” Florida Std. Jury Instr. 28.1 (Criminal).

“Capability” means practical ability. State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011).

“Actual physical control” is evaluated by a totality of the circumstances, including the following:

  1. actual or constructive possession of the key to the vehicle or proof that it could be operated without the key;
  2. the presence of the defendant in the driver’s seat; and
  3. proof that the vehicle was operable to some extent.

Id. at 77-78. See also 11 Fla. Prac., DUI Handbook sec. 1:3 (2022-2023 ed.).

In Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121a (Fla. 7th Cir. Ct. Nov. 18, 2005), a good samaritan observed a driver slumped over the steering wheel of a car in the middle of a residential roadway.  The good samaritan turned off the vehicle, removed the keys from the ignition, and placed the keys on the car’s hood. Id. The court found the warrantless arrest was unlawful because not all elements of the misdemeanor DUI were committed in the arresting officer’s presence. Id.

The location of the keys was the biggest factor when the court concluded: “No case has stretched the concept of physical control to encompass a situation where the vehicle is not running, and the keys are not even inside the vehicle.” Id.

Cases Finding No “Actual Physical Control”

The following cases show that if law enforcement is not investigating a crash, an officer cannot make a warrantless arrest for DUI unless the offense was committed in the presence of the arresting officer or a combination of all officers involved:

  • Sawyer v. State, 905 So. 2d 232, 234 (Fla. 2d DCA 2005) – arrest violated warrant requirement rule because only civilians, not law enforcement, witnessed the driver in actual physical control of the vehicle;
  • Steiner v. State, 690 So. 2d 706, 708 (Fla. 4th DCA 1997) – same as above; 
  • State v. Bass, 19 Fla. L. Weekly Supp. 653a (Leon Cty. Ct. April 18, 2012) – same as above: 
  • Green v. State, 20 Fla. L. Weekly Supp. 745a (4th Jud. Cir. Ct., March 14, 2013) – although the driver admitted to driving and had the keys, the arrest violated the warrant requirement because the driver was outside his vehicle that was not running when law enforcement arrived on scene;
  • State v. Perez, 24 Fla. Law Weekly Supp. 431a (Leon Cty. Ct. July 8, 2016) – although the driver admitted to driving and was inside the vehicle that was turned off, the arrest violated the warrant requirement because the keys were 6-12 inches outside the vehicle when law enforcement arrived on the scene.

This article was last updated on Monday, May 13, 2024.