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DUI with Actual Physical Control in Florida

People wrongly assume that to be charged with drunk driving in Florida, it requires the element of driving. However, Florida law provides that a person can face criminal prosecution for a DUI offense even if they were not operating the motor vehicle at the time of the incident. This is a crucial element known as “actual physical control.”

The concept of “actual physical control” is often one of the most confusing aspects of DUI cases in Florida. Law enforcement officers sometimes affectionally call these cases “parking while impaired.” It can include scenarios where a person is found asleep inside their vehicle, outside of their vehicle if it’s still warm and indicates the car has been recently driven, or even if police arrive to a scene where the DUI suspect is now outside of their vehicle. Essentially, it is whether a person under the influence had the capability to drive.

So, what happens if an officer finds you sitting in your vehicle? Under limited circumstances, the officer can ask you to exit the vehicle and begin a DUI investigation even if they never saw you driving. Although these cases are common, prosecutors usually have a more difficult time proving them at trial. It is important to understand the concept of actual physical control. A Florida defense attorney can represent your DUI case, providing you with legal guidance on how to fight against a criminal conviction.

Attorney for North Florida DUI Offenses  

The attorneys at Pumphrey Law have years of experience defending clients in DUI cases throughout North Florida. We understand the complexity that often surrounds DUI cases, especially when the State is trying to prove a defendant was in actual physical control.

Pumphrey Law Firm can help protect your rights while fighting for the best possible resolution in the case. Our defense attorneys represent individuals charged with drunk driving throughout Tallahassee in Leon County and the surrounding areas such as Bristol in Liberty County, Crawfordville in Wakulla County, Monticello in Jefferson County and Quincy in Gadsden County. Call us today at (850) 681-7777 to schedule a free consultation to go over your case details.

Information About Actual Physical Control Laws

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What is Actual Physical Control?

Florida’s DUI Statute explains that a person is guilty of a drunk driving offense if they are caught under the influence of alcohol while driving or while in actual physical control.

In DUI cases, actual physical control means that a person is either physically in or on the motor vehicle. It means that a person has the capability to operate the vehicle, regardless of whether they are actually operating the vehicle at the time. A person who is found in actual physical control of a vehicle while under the influence of drugs or alcohol can face DUI charges.

This term often applies in DUI cases when a driver pulls over to “sleep off” the intoxication. By remaining in the driver’s seat, even with the intention of sleeping, he or she could be considered in actual physical control of the vehicle and be charged with DUI.

For example, a prosecutor may be able to establish a defendant was in actual physical control if they were found inside the vehicle with the keys in easy reach. In Griffin v. State (Fla. 2d DCA 1984), the DUI defendant was found with his keys in the ignition, the lights on, and with the vehicle’s foot brake depressed by his foot. The court found that the definition of actual physical control was met, quoting a statement of the Oklahoma court to reflect their conclusion:

“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be to be drawn that he placed himself behind the wheel of a vehicle and could have at any time started the automobile and driven away. He therefore had “actual physical control” of the vehicle within the meaning of the statute.”

DUI cases often revolve around whether a defendant is considered in actual physical control. If you have recently been arrested for alleged DUI, contact the defense attorneys with Pumphrey Law to represent your case.

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Proving Actual Physical Control in DUI Cases

Proving a defendant is guilty of DUI falls on the prosecutor. One of the elements the State must prove beyond a reasonable doubt is whether the defendant was driving or in actual physical control at the time of the offense.

Determining actual physical control can be evaluated by multiple factors, such as:

  • Evidence showing that the defendant drove the vehicle to the location of the incident or planned to drive away from that location;
  • If the defendant’s keys were in the engine;
  • If the defendant’s car engine was running or still warm;
  • If the lights were on inside the vehicle;
  • If the defendant’s foot was on the break or gas pedal;
  • If the defendant attempted to put the car in drive;
  • If the defendant’s rear end was sitting in the driver’s seat; or
  • If the driver’s seat was reclined or upright.

These are only a few factors that may be considered in a DUI case where the State is trying to prove the defendant was in actual physical control. Contact a Tallahassee DUI defense attorney to go over the details of your incident and to strategize a plan for defense.

Penalties for a DUI Conviction

Drunk driving cases are accompanied with seriously harsh penalties if the State secures a conviction. Depending on the surrounding circumstances and the defendant’s criminal history, a DUI offense can be charged as a misdemeanor or a felony.

A defendant’s first or second DUI offense is classified as a misdemeanor. However, the fines associated with DUI offenses are higher than a standard misdemeanor:

  • First DUI Offense fines – Between $500 and $1,000
  • Second DUI Offense fines – Between $1,000 and $2,000

As for the potential incarceration period, a first or second DUI offense can result in the following:

  • First DUI offense imprisonment – Up to six months in jail
  • Second DUI offense imprisonment – Up to nine months in jail

A defendant’s third or fourth DUI offense is classified as a felony. The fines and incarceration period for a third or fourth DUI are listed below:

  • Third DUI Offense – Fines between $2,000 and $5,000 and up to one year in jail
  • Fourth or Subsequent DUI Offense (Felony DUI) – A fine no less than $1,000 and up to five years in prison.

In addition to the fines and potential prison sentences, a person who is convicted of a DUI offense due to being in actual physical control can face these additional consequences:

  • Completion of a DUI Substance Abuse Program;
  • License suspended or revoked for minimum 180 days;
  • Probation;
  • Community service;
  • Vehicle impoundment; and/or
  • Placement of an ignition interlock device (IID).

The penalties that can arise with a DUI conviction will seriously impact a person’s future. You can secure legal representation from the defense attorneys with Pumphrey Law Firm. We can assist you with obtaining a hardship license or reinstating your Florida driver’s license.

Related DUI Charges in Florida

Florida prosecutes individuals involved in drunk driving incidents that have additional factors outside of a standard DUI. The following provides related DUI charges in Florida that could challenge whether a defendant was in actual physical control:

  • DUI with Property Damage Defendant would face a first-degree misdemeanor for driving or being in actual physical control of a vehicle while under the influence of alcohol and that causes damage to the property or person of another.
  • DUI with Serious Bodily Injury Defendant would face a third-degree felony for driving or being in actual physical control of a vehicle while under the influence of alcohol and that causes serious bodily injury to another person.
  • DUI Manslaughter Defendant would face a second-degree felony for driving or being in actual physical control of a vehicle while under the influence of alcohol that causes that death to another person or unborn child. The defendant could face a first-degree felony if they failed to stay at the scene to render aid and provide their information.

You should be aware that these are all serious criminal charges for drunk driving. If you or a loved one are facing allegations for any of the DUI offenses listed above, contact Pumphrey Law as soon as possible. Our defense attorneys can help challenge the evidence and represent you in court.

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Finding A Tallahassee Lawyer for Actual Physical Control DUI Cases

If you were recently charged with DUI for being in actual physical control of the vehicle, contact the skilled and experienced DUI defense attorneys at Pumphrey Law Firm. Getting convicted of a DUI offense can have a lifetime of consequences even after the criminal case is resolved in court. Whether you have been charged with a first offense or have any prior DUI convictions, we can help.

Our defense attorneys can help clients charged with DUI after a breath, blood, or urine test. We also fight cases involving a refusal to consent to testing. Whatever your circumstances may be, let our DUI experts help fight for your future. Call Pumphrey Law’s office today at (850) 681-7777 to schedule a free legal case evaluation.


Page Updated February 12, 2024

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