Police Must Observe Suspect Driving or in Control of Vehicle for DUI Arrest in Florida

In order for the police in Florida to make a valid arrest for DUI (driving under the influence of alcohol or drugs), a police officer must actually observe the DUI suspect either driving the vehicle or in actual physical control of the vehicle. Actual physical control of the vehicle is often characterized by observing the person in the driver’s seat with the keys readily available or in the ignition.

This seems obvious as most DUI cases in Florida result from the police officer claiming to observe a person driving his/her vehicle in violation of some traffic law, stopping the person and then ultimately conducting some sort of subjective DUI investigation. However, there are cases where the police do not find and observe the suspect until he/she has actually stopped driving and exited the vehicle.

For instance, it is not uncommon for another citizen to observe a person driving erratically, call 911 and then give the 911 operator a description of the suspect vehicle. If the police officer locates the suspect vehicle and verifies with his/her own observation that the driver appears to be impaired while driving, the police officer can stop the driver and initiate a DUI investigation. However, if the police officer finds the suspect driver out of the suspect vehicle, never having seen him/her driving or in control of the vehicle, the police officer could not legally make a DUI arrest even if it is clear the driver is impaired from alcohol or drugs. An element of a DUI offense that the state has to prove is that the suspect was driving or in physical control of the vehicle. The police have to observe this element to make a DUI arrest. If the police do not observe it, even if a non-police witness does, it is not sufficient for a DUI arrest.

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