Can You Be Arrested for DUI in Florida if You Are Not Driving the Vehicle?

Understanding DUI Laws in Florida

Driving Under the Influence (DUI) is a serious offense in Florida, and the law aims to ensure the safety and well-being of all road users. But what if you are not actually driving your vehicle? Can you still be arrested for DUI in Florida? The answer is more nuanced than a simple yes or no, as it depends on specific circumstances, particularly the concept of “actual physical control.”

The Legal Definition of DUI

In Florida, DUI is not solely about driving a vehicle. According to Florida Statute § 316.193, a person is guilty of DUI if they are in “actual physical control” of a vehicle while under the influence of alcohol or any controlled substance to the extent that their normal faculties are impaired or if they have a blood alcohol concentration (BAC) of 0.08% or higher. 

This legal definition extends the scope of DUI beyond just driving, incorporating situations where an individual may not be actively driving but still poses a potential risk by having control over the vehicle.

What Is “Actual Physical Control”?

Florida jury instructions state that “Actual physical control” 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.  This can include situations where the person is in the car, has the keys in the ignition, or is otherwise in a position to operate the vehicle. In Florida, this has been used to prosecute people who were asleep in the car with the keys in their pockets.  

The vehicle does not need to be moving or even started for someone to be considered in actual physical control. The key factor here is the potential ability to operate the vehicle, which law enforcement can interpret based on various indicators.

Examples of Situations Where You Could Be Arrested

Here are some examples where someone might be considered in “actual physical control” of a vehicle and could be arrested for DUI in Florida, even if they are not driving:

• Sitting in the Driver’s Seat: If you are sitting in the driver’s seat with the keys in the ignition or within reach, you can be considered in control of the vehicle. The mere presence in the driver’s seat with access to the keys can be enough for law enforcement to determine that you have the potential to drive.  There are cases where the person was located inside the vehicle in a position other than the driver’s seat and was still prosecuted. The best advice is not to be in the vehicle with the keys.
• Sleeping in the Vehicle: Even if you are asleep in the vehicle, if you are in the car and have access to the keys, you can still be arrested. Law enforcement may argue that you had the intention to drive but fell asleep, or you could wake up and decide to drive while still impaired.
• Engine Running: If the engine is running, it can be inferred that you have the intention to drive or have recently driven, making you subject to a DUI arrest. This scenario is particularly pertinent if you are sitting in the driver’s seat with the engine running, as it demonstrates a clear capability to operate the vehicle.

Legal Consequences

Being arrested for DUI in Florida, even if you are not driving, carries significant consequences. Penalties for a first-time DUI offense can include fines, license suspension, community service, probation, and even imprisonment. 

The severity of the penalties can vary based on factors such as your BAC level, whether you have prior DUI convictions, and if there were any aggravating circumstances, such as causing an accident or having a minor in the vehicle.

For a first-time offense, you might face:

• Fines ranging from $500 to $1,000.
• License suspension for 180 days to one year.
• Up to six months of imprisonment.
• Mandatory completion of a DUI school and possible substance abuse treatment.
• Other mandatory penalties

Subsequent offenses lead to more severe penalties, including longer license suspensions and mandatory imprisonment. For example, a second DUI offense within five years of the first can result in:

• Fines ranging from $1,000 to $2,000.
• License suspension for at least five years.
• Mandatory imprisonment of at least 10 days, with a maximum of nine months.
• Installation of an ignition interlock device on your vehicle.
• Other mandatory penalties

Third and subsequent offenses carry even harsher penalties, including longer imprisonment terms and permanent revocation of your driver’s license. Additionally, having a BAC of 0.15% or higher or having a minor in the vehicle can result in enhanced penalties.

Impact on Your Personal and Professional Life

Beyond the legal consequences, a DUI arrest and conviction can have far-reaching effects on your personal and professional life. A DUI conviction can lead to:

• Employment Issues: Many employers conduct background checks, and a DUI conviction can be a red flag. You might face difficulties securing a job, especially if it involves driving or if the employer has strict policies regarding criminal records.
• Insurance Premiums: Your auto insurance premiums are likely to increase significantly following a DUI conviction. Insurers consider DUI offenders as high-risk drivers, which leads to higher premiums.
• Personal Relationships: A DUI arrest and conviction can strain personal relationships with family and friends. The stigma associated with DUI can lead to embarrassment and social isolation.
• Driving Privileges: Losing your driving privileges can impact your ability to commute to work, run errands, and fulfill personal responsibilities. This loss of independence can be particularly challenging in areas with limited public transportation options.

Defending Against DUI Charges

If you find yourself charged with a DUI in Florida under the “actual physical control” provision, it is essential to seek experienced, aggressive legal counsel like the board-certified* DUI Defense Experts at Katz & Phillips, P.A.  

Our experienced DUI attorneys can help challenge the evidence and argue that you were not in actual physical control of the vehicle. They can also explore other defenses based on the specific circumstances of your case. Some possible defenses include:

• Lack of Actual Physical Control: Your attorney can argue that you did not have actual physical control of the vehicle. For instance, if you were in the back seat or outside the car, it might be challenging for the prosecution to prove you had control.
• Improper Police Conduct: If law enforcement did not follow proper procedures during the arrest, such as failing to read your Miranda rights or conducting an unlawful search, your attorney can challenge the validity of the evidence obtained.
• Questioning BAC Results: The accuracy of BAC testing devices can be challenged. Factors such as improper calibration of the Intoxilizer 8000, medical conditions affecting BAC levels, or errors in blood sample handling can be used to question the reliability of BAC results.
• Necessity Defense: In some cases, you might argue that you were in actual physical control of the vehicle out of necessity. For example, if you were avoiding a dangerous situation or waiting for a designated driver, this defense might apply.

Contact Our DUI Defense Experts at Katz & Phillips

In summary, it is possible to be arrested for DUI in Florida even if you are not driving the vehicle. The key factor is whether you are in “actual physical control” of the vehicle. Understanding this aspect of Florida’s DUI laws can help you make informed decisions and avoid legal complications. 

If you find yourself in such a situation, seeking legal advice from a qualified Orlando DUI defense attorney is crucial to navigating the complexities of the law and protecting your rights. 

Let the experienced board-certified* DUI Defense specialists at Katz & Phillips help you. Give us a call today to discuss how we can put our experience and skills to work for you.