Asleep Behind The Wheel
ACTUAL PHYSICAL CONTROL
To convict you of DUI, the state must prove you were in actual physical
control. You do not have to be driving the car to be charged with DUI;
however, being asleep in a parked vehicle can be a basis for a DUI prosecution.
We can challenge this type of case and have done so with success.
What are the elements of an Actual Physical Control case?
- Actual, or constructive possession over the key to the vehicle.
- Driver is in the driver's seat, passenger seat or passenger compartment.
- Evidence that the vehicle was operable.
Proof the vehicle can operate without a "key" is more common
these days with fobs that don't require a keyhole and with the advent
of electric/hybrid cars.
Having ready and apparent ability to move the car is the important factor
for "actual" possession to be proven. There have been cases where the arrestee is in the back seat of the car,
but had the keys in his pocket, and was convicted of DUI. In order for
evidence that the car was "operable," the vehicle has to be
capable of self-propelled mobility. Running out of gas isn't a defense.
Not having any tires or serious mechanical defect could be a defense to
the charge. In some states (not Florida) you would need a certificate
from the state that the car was a junker.
Watch this video to learn more about the components of an actual physical
So, if you're sitting in a parked car sleeping it off, with the engine
turned off and the gear shift in park, you can still be arrested for DUI.
There are cases where even having the keys outside the car won't prevent
an arrest for DUI under an Actual Physical Control theory. Even putting
the keys on the roof of the car (very old urban legend) and sleeping it
off in the passenger's seat may not prevent an arrest for DUI.
In over 30 years as a
Miami DUI Attorney, I've seen zealous prosecutors try to shoehorn weak facts into a DUI
prosecution. Some prosecutors lose sight of the fact that many cases like
these simply involve people trying to be responsible and NOT drive while impaired.
How We Can Win APC Cases
Case Study #1
Client parks car outside a late night club and gets a parking time receipt,
places on his dashboard. Drinks at a club, comes out, doesn't want
to drive. Two hours left on his parking meter, sits in car, reclines seat
goes to sleep. Hybrid car. Officer knocks on window, wakes up client,
tests and arrests for DUI. Arrest form says "key in ignition, engine
Client did not drive to the location in an intoxicated state, proof of
time he parked and how much time left on receipt. No "ignition"
in the hybrid car. Engine can't run in a parked hybrid car.
Case Study #2
Client parks car in a lawful parking spot and goes to a club, comes back
to sleep it off. Client doing nothing other than sleeping. DEFENSE: Officer
had no reasonable suspicion to approach car, awaken drive and require
him to exit vehicle. RESULT: Motion to Suppress Evidence GRANTED. Case
Contact Jonathan Blecher, P.A.
For over 30 years and over 3,000 DUI cases,
Miami DUI Lawyer Jonathan Blecher has been using creative defenses such as these to successfully defend
otherwise nice people charged with DUI. call us for a free, no obligation
consultation. (305) 670-1800 - office (305) 321-3237 - mobile