Can I Get a DUI if I’m Not Driving?

By Jonathan Blecher on September 20, 2018

It’s common knowledge that it’s unlawful to drive a vehicle while under the influence of drugs or alcohol, or a combination of drugs and alcohol, but what fewer people are aware of is that it’s also unlawful to be under the influence, driving or “in actual physical control” of a vehicle. “Actual physical control,” what does that mean?

To be in “actual physical control” of a vehicle, the defendant was in (or in the case of a DUI crash, sometimes near) the vehicle and had the ability to operate it. So, if you had just finished enjoying some drinks with friends at Blackbird Ordinary, Ball & Chain, at The Anderson, or Gramps, and decided to sleep off the alcohol in your vehicle until the morning, you can be arrested for DUI because you were in actual physical control of your car while under the influence.

Examples of ‘Actual Physical Control’

Originally, the law was meant to punish drunk and drugged drivers who had been involved in a crash because the police wouldn’t actually catch the impaired driver in the act. They’d arrive at the scene after the fact. The police knew the driver was under the influence, but they couldn’t prosecute them for DUI. So, to correct this challenge, the actual physical control language was added to Section 316.193(1) of the Florida Statutes.

How an impaired driver can be charged with DUI even if they aren’t driving:

  • The driver is asleep at the wheel and the keys are in the ignition.
  • The driver is asleep at the wheel and the keys are in their pocket, on their lap, or in a purse in the front seat.
  • The driver is parked but the engine is running, the hood is warm and the lights are on.
  • The defendant’s car was found someplace where it had to be driven to.
  • The car was operable.
  • The driver walked away from the vehicle after a crash.
  • The driver is sitting in the car after getting it stuck in a ditch.

Related: 6 Facts About a First DUI in Florida

Were you arrested for DUI in Miami even though you weren’t actually driving? If so, you could still be facing DUI prosecution if the state can prove that you were in actual physical control of your vehicle. To learn more about your defense options and to hear about DUI Diversion, contact my firm today!

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