But I Wasn't Driving The Car When the Police Found Me

The legal term is “driving under the influence.” It stands to reason that a police officer must have noticed you driving while impaired by alcohol or drugs. But driving isn’t always a necessary element. Like many states, Florida has an “actual physical control” law that allows for DUI charges if several conditions were met that would have allowed you to drive while impaired.

At my firm, Jonathan B. Blecher, P.A., I have been offering experienced and aggressive DUI defense representation to clients in the Miami area for more than 40 years. If you were charged with DUI – including under the actual physical control statute – I’m ready to aggressively defend your rights and freedoms.

What Is Needed To Establish Actual Physical Control?

One of the most common actual physical control (ACP) scenarios is police discovering and arresting someone asleep in their vehicle. Imagine you attended a house party, had some drinks and didn’t feel safe to drive home. You didn’t want to impose on the host, so you decided to sleep in your car. The car wasn’t on and you weren’t even in the driver’s seat, but a police officer came and arrested you anyway. Why can they do this?

In Florida, these are the three elements needed for an ACP charge:

  • You were in possession of the vehicle’s key (even if you weren’t touching it)
  • You were somewhere inside the cab of the vehicle (it doesn’t have to be the driver’s seat)
  • The vehicle was in operable condition (it was working and could be driven, even if it was out of gas)

Many newer cars these days use a key fob and a push-button start rather than a key that you need to insert and turn. That makes it easier for prosecutors to support an ACP charge. Zealous prosecutors often try to secure a DUI conviction even when the evidence strongly suggests that the defendant had no intention of driving. This is ironic because many people charged with ACP were trying to do the right thing by avoiding driving drunk.

How I Have Helped Clients Win APC Cases

Thankfully, experienced defense attorneys like me know how to challenge evidence and expose the weaknesses in the prosecution’s case. Two real examples are discussed below.

Case Study No. 1

The client parks his car outside a late night club, gets a parking time receipt and places it on his dashboard. He drinks at a club, comes out and knows he doesn’t want to drive. With two hours left on his parking meter, he sits in his hybrid car, reclines the seat and goes to sleep. An officer knocks on the window, wakes up the client, tests and arrests him for DUI. The arrest form says “key in ignition, engine running.”

Our defense argument:
The client did not drive to the location in an intoxicated state, proof of time he parked and how much time was left on receipt. No “ignition” in the hybrid car. Engine can’t run in a parked hybrid car.

DUI dismissed

Case Study No. 2

The client parks his car in a lawful parking spot and goes to a club, then comes back to sleep it off. Client did nothing other than sleep.

Our defense argument:
The officer had no reasonable suspicion to approach car, awaken driver and require him to exit vehicle.

Motion to suppress evidence is granted, and the case is dismissed.

Discuss Your DUI Charges In A Free Consultation

In over three decades of practice, I have worked on more than 3,000 DUI cases. I have helped many others, and I know I can help you, too. To take advantage of a free initial consultation, call my Miami office at 305-321-3237, or reach out online.