Florida Statutes 316.193(1) prohibits driving or being in actual physical control of a vehicle while a person’s normal faculties are impaired by either alcohol, chemical or controlled substance or the person has a blood or breath alcohol level of .08 or higher. The keyword in this Statute is actual physical control. The jury instructions for actual physical control are; "the defendant must be physically in the vehicle and have the capability and power to dominate, direct or regulate the vehicle regardless of whether or not he is exercising that capability or power at the time of the offense." Thus, it is not a good idea to pull your vehicle over and "sleep it off". Florida courts have pushed the vehicular "control" issue in this regard. Since there is no "hard and fast rules" about what constitutes actual physical control, here are a couple of examples of what courts have found to constitute actual physical control.

In Mitchell v. State, 538 So.2d 106 (Fla. 4th DCA 1989), the defendant was found slumped over the steering wheel in the parking lot of a Burger King restaurant. The keys were in the ignition, but the engine was not running and the headlights were not on. The court held that the defendant was in actual physical control.

In Chabut v. State, 2 FLW Supp 247 (17th Jud Cir. 1994), the defendant was found passed out in the passenger seat, keys in the ignition and the court reversed the conviction based on the fact that the defendant was not in actual physical control.

As you can see from the two examples above that actual physical control is technical legal issue that an experienced DUI lawyer will be able to identify and attack the weakness in the State Attorney’s case. Actual physical control is an issue that provides an excellent opportunity for the defense attorney to get their clients DUI case dismissed. If you’re charged with a DUI but you were not actually driving, contact an experienced DUI lawyer to discuss your case.