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Constructive Actual, Physical Control of Vehicle is a Valid DUI Defense in Florida

In Florida, most people are arrested for DUI (driving under the influence of alcohol or drugs) after a police officer observes them driving a vehicle while allegedly impaired. While the DUI crime is called “driving” under the influence, a person in Florida does not actually have to be driving to be arrested and convicted of a DUI charge. There are two ways to be guilty of DUI. Driving, of course, is one way. The statue provides for another method. If a person is in actual, physical control of the vehicle while impaired from alcohol or drugs, that person can be arrested and convicted of DUI even if the police officer, or anyone else, never sees that person driving. So, what does actual, physical control of a vehicle mean in Florida? There have been numerous cases that have discussed situations where a DUI suspect was found in or near his car and whether that constituted actual, physical control sufficient for a DUI conviction. Some of the factors include how close the suspect is to the driver’s seat, where the keys are located and whether the vehicle is operable.

In a recent DUI case south of Jacksonville, Florida, the suspect was involved in a minor auto accident, and the police were called. When the police officer arrived, he saw the suspect outside the vehicle leaning against the car on the driver’s side and another person was leaning against the passenger side of the vehicle. The keys were in the ignition.  The officer assumed the suspect on the driver’s side, who was the owner of the vehicle, was the driver of the vehicle and arrested her for DUI after determining that he was impaired from alcohol. At the trial, the criminal defense lawyer moved for a judgment of acquittal because there was no evidence that the defendant was driving the vehicle and insufficient evidence that she was in actual, physical control of the vehicle. The Florida law says the suspect must be in or at the vehicle and have the capability to operate the vehicle. The state must also show the keys were either in the ignition or close enough to the defendant to allow her to start the vehicle and drive away.

In this case, the keys were in the ignition and the suspect was close enough to the vehicle to be in actual, physical control. However, the DUI conviction was reversed because both the defendant and the person leaning against the passenger side were jointly in control of the vehicle, and both of them had the same capability to operate the vehicle. In a case where more than one person has actual, physical control of the vehicle (i.e. joint occupation or control), the state must provide independent proof to establish the defendant was in constructive possession of the vehicle. The fact that she was the owner of the vehicle and on the driver’s side was not sufficient. Without independent proof that the suspect was driving or had control of the vehicle to the exclusion of the other party, the state could not meet its burden of a conviction for DUI.