Can I Be Charged with Felony DUI in Florida if I Wasn’t Driving?

What You Need to Know About Florida DUI Laws When You Haven't Been Behind the Wheel

Being arrested for driving under the influence (DUI) in Florida can be a terrifying experience, but what if you weren't driving at all? What if you were in the car but not the one behind the wheel? Can you still be charged with DUI, even if you weren't driving? The short answer is yes, and it could lead to serious consequences, including felony charges.

I know how overwhelming and confusing it can be when you're arrested for something you didn't think could happen to you, especially when you weren't even driving. But the law in Florida is clear — and it's strict. In this article, I'll explain how Florida DUI law works, especially when you weren't driving, the potential defenses you can raise, and why it's crucial to have an experienced DUI defense attorney by your side to fight for your rights.

What Does Florida Law Say About DUI?

Florida DUI laws are outlined in Florida Statutes § 316.193. According to the law, a person is guilty of DUI if they are driving or in actual physical control of a vehicle while under the influence of alcohol or drugs to the extent that their normal faculties are impaired or their blood alcohol content (BAC) is 0.08 or more.

The key phrase here is "actual physical control" of the vehicle. Many people assume they can't be charged with DUI if they aren't actively driving, but that's a misunderstanding of the law.

What Does "Actual Physical Control" Mean?

Florida law allows individuals to be charged with DUI if they are in actual physical control of a vehicle, even if they aren't driving it at the time. This is the crucial point that often catches people off guard.

"Actual physical control" means that even if the car isn't moving, if you have the ability to operate it, the law considers you as being in control. For example, if you're sitting in the driver's seat with the keys in your hand or the ignition, you could still be charged with DUI. It doesn't matter if the engine is running or if you're parked on the side of the road — as long as you have control over the vehicle, you can face charges.

Relevant Florida Statutes

Under Florida Statutes § 316.193(1):

"A person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle within this state and… under the influence of alcoholic beverages, any chemical substance, or any controlled substance under chapter 893, when affected to the extent that the person's normal faculties are impaired."

This statute makes it clear that "actual physical control" extends beyond driving the vehicle. So, if you're found in the driver's seat with the keys within reach and under the influence of alcohol or drugs, you could be arrested for DUI, regardless of whether you were driving.

Can I Be Charged with Felony DUI If I Wasn't Driving?

In Florida, DUI charges are serious, even for first-time offenders. But if you've been arrested for DUI multiple times, things get a lot worse. If you are charged with DUI after having prior convictions, you could face felony DUI charges, even if you were not driving at the time.

Here's how it works:

• First Offense: DUI is generally a misdemeanor.
• Second Offense (within 5 years): DUI is still a misdemeanor but with increased penalties.
• Third Offense (within 10 years): This can be upgraded to a felony DUI, with serious penalties, including mandatory jail time.
• Fourth DUI Conviction: Felony DUI, regardless of the timing of previous offenses.

What If You Weren't Driving?

Even if you were not driving but were in the driver's seat, in possession of the keys, and impaired, you can still be charged with felony DUI if you have prior DUI convictions. In Florida, "actual physical control" is sufficient to lead to charges, and previous convictions mean much harsher penalties.

A Real-Life Example

I once represented a client who was stopped by police in Miami. The officer found my client in the driver's seat of a parked car; the keys were in the ignition, and my client appeared impaired due to alcohol. My client was arrested for DUI, but he wasn't driving.

After reviewing the case, we challenged the probable cause for the arrest. The officer had no evidence that my client had operated the vehicle; they couldn't prove whether the car had been running recently or whether my client had driven the vehicle at all. We also examined witness testimony and the circumstances surrounding the stop, showing that my client was simply trying to get home safely.

In this case, we argued that my client was not in "actual physical control" of the vehicle because there was no evidence he was about to drive. The charges were eventually dropped, and my client avoided a DUI conviction.

Defenses That May Apply in Your DUI Case

Just because you've been charged with DUI while not driving doesn't mean you're automatically guilty. Here are a few defenses that may apply:

1. Lack of Probable Cause

The arresting officer must have probable cause to believe you were driving or about to drive while impaired. If the officer did not have valid reasons to stop you, or if they didn't have evidence that you were in control of the vehicle, the charge may be invalid.

2. You Were Not in Physical Control of the Vehicle

While Florida law allows DUI charges based on actual physical control, it's up to the officer to prove that you had control over the vehicle. For example, if the keys were in the trunk or glove compartment and not near you or if you were sitting in the passenger seat, this could work in your favor.

3. You Weren't Impaired

If you weren't actually impaired by alcohol or drugs, this can serve as a defense. If the officer's observation wasn't accurate or if the testing was flawed, challenging the results is a valid defense.

4. Improper Arrest

If the officer violated your rights during the stop, such as not following proper procedures for testing, this could lead to evidence suppression. For example, unconstitutional searches or seizures may lead to dismissal of the case.

5. Medical Conditions

Certain medical conditions can mimic impairment. For instance, conditions like diabetes, fatigue, or even allergies can affect your ability to pass a field sobriety test. If your medical history is relevant, this could be used as a defense.

Why You Need a Private Attorney in DUI Cases

Federal and state DUI laws are strict, and DUI cases involving felony charges are particularly challenging. While you may be tempted to represent yourself or rely on a public defender, hiring a private DUI defense attorney is essential for several reasons:

1. DUI Laws Are Complex

DUI laws, especially when it comes to felony charges, are nuanced. A private attorney who specializes in DUI cases will understand the intricacies of the law and can spot weaknesses in the prosecution's case.

2. We Know How to Challenge the Evidence

We know how to challenge field sobriety tests, breathalyzer results, and DRE (Drug Recognition Expert) evaluations. We can also dispute whether you were truly in control of the vehicle when arrested.

3. Aggressive Defense

A private attorney will go beyond just accepting the charges. We will aggressively challenge the evidence, request hearings, and ensure that your constitutional rights are upheld during the entire process.

4. Sentencing Mitigation

If convicted, an experienced lawyer can help reduce your penalties, find alternative sentencing options like probation, or advocate for a reduced sentence based on mitigating factors.

5. Peace of Mind

Having an experienced lawyer by your side allows you to focus on your life while we focus on your case. We can work to get charges dropped or reduced and provide peace of mind during an uncertain time.

If you've been arrested for DUI in Florida, even if you weren't driving, don't wait to get the help you need.  Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.

FAQs – Felony DUI in Florida

Can I be charged with DUI if I wasn't driving?

Yes, under Florida law, you can be charged with DUI if you were in actual physical control of the vehicle, even if you were not driving. This includes sitting in the driver's seat with the keys in your possession.

What does "actual physical control" mean?

It means that you are in control of the vehicle, whether it's moving or not. If you're in the driver's seat with the keys in the ignition or close by, you could be charged with DUI.

Can I still be charged with felony DUI if I wasn't driving?

Yes, if you have prior DUI convictions, you could face felony charges even if you weren't driving. Florida law applies the same penalties for DUI offenses, regardless of whether you were driving the car.

What happens if I'm charged with felony DUI in Florida?

Felony DUI charges come with severe penalties, including mandatory jail time, fines, and extended license suspension. You could also face mandatory DUI education programs and an ignition interlock device.

How can a DUI lawyer help me if I wasn't driving?

A lawyer can challenge the evidence against you, such as whether you were truly in control of the vehicle or impaired. They can also argue against unlawful searches and seizures and potentially get the charges reduced or dismissed.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

If you've been arrested for DUI in Florida, even if you weren't driving, don't wait to get the help you need. Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.