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.
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 control case.
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 actual physical control 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.
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 running".
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 DISMISSED.
For over 30 years and over 3,000 DUI cases, Miami 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
Additional resources: Can a ‘Drunk’ Passenger be Charged with a DUI?