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DUI Actual Physical Control Not Just Being the Intoxicated Owner

An element the State has to prove in a DUI is that the accused was either driving or in "actual physical control" of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control.

Actual physical control typically means a defendant must be physically in or on the vehicle. In addition, the accused must have the capability to operate the vehicle, regardless of whether the vehicle is being operated. Some defendants have been found to be in actual physical control while sleeping if for example they are in the driver's seat with the keys in the ignition. Keys nearby has also been found sufficient.

If a vehicle is jointly occupied or attended too, then there needs to be independent proof of the person that was driving. For example, in a recent case, two people were found leaning against a car that had been in a minor crash. The owner of the vehicle was leaning on the driver's side and a second person on the passenger side of the vehicle and the keys were in the ignition when the cops arrived and began the DUI investigation.

Of course, the intoxicated owner was arrested. The Court reversed the driver's conviction declining to find the owner in actual physical control. The Court found that that it would be an impermissible stretch to accept the State's argument "that two persons can be standing outside of a vehicle and the vehicle's intoxicated owner can be arrested and convicted of driving under the influence because he or she is intoxicated and the registered owner of the vehicle." In the case there was no independent evidence of who was driving. Of note to this writer is the importance of the accident report privilege and the attorney's probable use of it to exclude evidence from the hearing.

Criminal traffic and DUI defense can be technical areas of practice. Not knowing the entanglements of the law such as how and why the accident report privilege wins cases can ruin the case and the life it affects. Please click, call or fill out the form below to hire an experienced DUI attorney.


Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984) (defendant who was asleep was in actual physical control of the vehicle).

Howell v. State (11th Circuit March 5, 2019).

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