You’re familiar with the fact that in Florida and across the nation, it’s against the law to drive under the influence (DUI) of alcohol. You’re probably aware that it’s also illegal to drive under the influence of illegal drugs, but let’s expand on that. It’s against the law to drive under the influence of drugs and alcohol, and lawfully prescribed drugs because these substances can impair one’s ability to drive safely. There are also a number of prescription drugs that can make it less safe to drive, so they’re prohibited too.
What you may not know is that it is possible to get a DUI in Florida even if you were not driving at all. “What, I can get a DUI even if I’m not driving?” Yes, you read that right, and, unfortunately, people get arrested all the time for DUI when they aren't actually driving. If you don’t want this to happen to you, we suggest you read on.
Florida Man Arrested for DUI Even Though He Wasn't Driving
Just after 1:00 am on January 9, 2021, a Florida deputy came upon a pickup truck. The engine was running, the brake lights and headlights were on, and there was a man in the driver’s seat. He was asleep with his foot on the brake pedal.
The deputy woke the driver, who refused to roll down his window. The man instead reached for a can of beer sitting in the cupholder next to him, opened it, and tried to take a drink.
It was then that the deputy broke the window of the truck and shifted the vehicle into park. He arrested the man for drunk driving – even though the deputy did not observe the man actively driving the truck.
Florida DUI: Actual Physical Control
Most states, including Florida, have laws on the books about sitting or sleeping in a vehicle while intoxicated. Even though you wouldn’t be driving, the concern is that if you have the keys to the vehicle, all you have to do is stick the keys in the ignition and drive off. So, it’s a matter of having the ability or intention to drive under the influence.
Under Florida law, this situation is referred to as “actual physical control” and it’s covered under Section 316.193 of the Florida Statutes. We typically see this type of case when someone drank too much alcohol and they decided to “sleep it off” until the alcohol metabolized in their system, and they were no longer too impaired to drive.
Under Sec. 316.193(1) it reads: “A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state.”
In Florida, the penalties for being under the influence of alcohol, drugs, or a chemical substance and being “in actual physical control” of a vehicle are the same as the penalties for driving under the influence – the state does not distinguish between the two.
First DUI Penalties (Driving or In Actual Physical Control)
- Up to a $2,000 fine depending on blood alcohol level (BAL)
- A maximum of nine months in jail
- Driver's license revocation from 180 days to one year
For individuals who are convicted of their first DUI offense (including actual physical control), they may be able to have their driver's license reinstated strictly for employment or business purposes. However, to be eligible for reinstatement, they have to complete DUI School, and they must apply for a hearing for hardship reinstatement. If the offender’s BAL was .15 or above, they must install an Ignition Interlock Device (IID) for up to six months.
Examples of Actual Physical Control
Usually, when people are busted for being in actual physical control of a vehicle, they were trying to do the right thing by sleeping it off and avoiding a DUI, but they did not know that it was also illegal to sleep in their vehicles while intoxicated.
As we mentioned earlier, the concern is that an intoxicated person who is sitting or sleeping in their vehicle can turn on the car and drive away at any time, so here are some examples of how someone could be arrested for DUI in this type of scenario:
- A man has several shots at a bar. He walks to his car and decides to spend the night in the driver’s seat so he doesn’t drive home drunk.
- A woman goes to a concert and has several beers. During a break, she goes to her car to drink some whiskey she brought from home. As she’s sitting in her car with her keys on her lap, she drinks from a flask.
- A couple of teenagers park their car behind a bowling alley. The driver spends an hour in the parking lot, drinking beer as he sits in the front seat with his keys in his pocket.
- A woman has three glasses of wine with friends at a restaurant. She starts to drive home but realizes she’s too buzzed. She pulls over into a parking lot to “take a nap” while she sobers up. The keys are in the ignition as she rests.
In all of the above scenarios, a law enforcement officer can approach the vehicle and ask the individual sitting in the front seat if they have been drinking. If the suspect fails the field sobriety tests or a preliminary breath test, they can be arrested for DUI on the spot, even though they weren’t actually driving!
Do You Have to Be in the Driver's Seat to Be Arrested for DUI?
It may seem as though many of the examples of "actual physical control" involve a person who is actually sitting in the driver's seat. This might make you wonder whether you must be in the driver's seat to be arrested for DUI, regardless of whether the vehicle was in motion or you were "sleeping it off." What if you were in the back of the vehicle, for example?
This is somewhat of a grey area. Florida Criminal Jury Instructions state: "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] [she] is actually operating the vehicle at the time."
If you consider a person's "capability to operate the vehicle," this might not exclude a person who was found in the backseat of a vehicle, if they had the keys in their possession and could have moved to the front and driven away. It will vary on a case-by-case basis, depending on the exact circumstances of where the driver was, where the keys were in relation to the driver, and where the vehicle was found.
DUI When You Weren't Driving? Call Our Tampa DUI Defense Firm Today!
In most states, Florida included, law enforcement may arrest a person for DUI even if they do not actually witness or observe the person operating the vehicle. They may not need to see the vehicle in motion to establish probable cause that the driver was under the influence of alcohol and/or drugs. If the driver is in physical control of the vehicle, this may be enough for a DUI arrest.
If you or someone you know was arrested for DUI even though the car wasn’t actually being driven, you have options. You have rights. Our Tampa DUI lawyers know how to challenge drunk driving charges when people are arrested even though they weren’t driving at the time. We have successfully handled more than 7,000 criminal cases across Florida and know what it takes to protect our clients from the harsh consequences of a conviction.
Were you arrested for DUI despite the fact that you were not driving? If so, contact our firm to meet with a Tampa DUI defense attorney for free!