Understanding Florida’s “Actual Physical Control” Law and How We Defend These Cases
Many people believe that to be arrested for DUI in Florida, you must be caught driving on the road. The truth is that under Florida Statutes §316.193, an officer can arrest you if you are simply in “actual physical control” of a vehicle while under the influence.
Here is the statute language directly from Florida Statutes §316.193(1):
“A person is guilty of the offense of driving under the influence and is subject to punishment… if the person is driving or in actual physical control of a vehicle within this state, and:
(a) The person is under the influence of alcoholic beverages, any chemical substance… when affected to the extent that the person’s normal faculties are impaired; or
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”
The critical term here is “actual physical control.” This means you could be in the driver’s seat with the keys in the ignition, even if the car is not moving, and still be considered in control of the vehicle. This law is what allows officers to make arrests in situations where someone is parked but allegedly impaired.
If you are in this situation, you need a private attorney immediately. Public defenders are skilled but often overloaded with cases. A private attorney can invest the time to examine every detail — from the officer’s approach to whether your presence in the vehicle actually meets the definition of control.
What “Actual Physical Control” Means in Florida
Florida courts have interpreted “actual physical control” broadly. The Florida Standard Jury Instructions define it as:
“Actual physical control means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether they are actually operating it at the time.”
The keys don’t even have to be in the ignition — if they are within reach and you are in the driver’s seat, an officer may claim you had the ability to drive.
From a defense perspective, this definition opens the door to multiple challenges. We can argue:
- The keys were not accessible.
- The vehicle was inoperable.
- You were in the car for reasons unrelated to driving (such as waiting for a ride).
Without a strong private defense lawyer, you could be convicted even if you never intended to drive. My job is to break down the state’s theory and show the jury that physical presence does not equal intent to operate.
A Real Case We Won
Several years ago, I defended a man in Pinellas County who was found asleep in the driver’s seat of his car in a convenience store parking lot. The engine was off, and the keys were in his pocket. The officer arrested him for DUI, claiming that because he was behind the wheel with access to the keys, he was in “actual physical control.”
We challenged the case on several grounds:
- The client had parked there to wait for a friend who was going to drive him home.
- The keys were not in the ignition or anywhere near the steering column.
- There was no movement of the vehicle, and the client made no attempt to drive.
After presenting these facts, the prosecutor dropped the DUI to a lesser non-criminal charge. Without a focused private defense, the case might have ended with a DUI conviction and all the penalties that follow — fines, license suspension, and a permanent criminal record.
Relevant Florida Statutes Beyond §316.193
While §316.193 defines DUI, several other Florida laws often come into play in these cases:
- §316.1932 – Implied Consent Law
- This statute requires drivers to submit to breath, blood, or urine testing if lawfully arrested for DUI. Refusal can lead to a one-year license suspension for a first refusal and 18 months for subsequent refusals.
- §316.1933 – Blood Test in Serious Injury or Death Cases
- In certain cases involving injury or death, officers can compel a blood draw without consent.
- §322.2615 – Administrative Suspension
- This statute governs the administrative license suspension process following a DUI arrest or refusal to submit to testing.
These laws mean your legal battle is often twofold — the criminal charge and the administrative license suspension. A private attorney can fight on both fronts simultaneously.
Defenses in “Sitting in the Car” DUI Arrests
In these cases, our defense strategy focuses on dismantling the “actual physical control” element and the impairment allegation. Common defenses include:
- No Actual Physical Control
- We prove that you were not in a position to operate the vehicle. For example, you were in the back seat, or the keys were stored in a locked trunk.
- Vehicle Inoperability
- If the car could not be driven (dead battery, flat tire, mechanical failure), you cannot be guilty of DUI.
- No Probable Cause for Arrest
- Officers must have a lawful reason to approach and detain you. If the initial contact was unlawful, the entire case may be dismissed.
- Lack of Impairment Evidence
- We challenge field sobriety tests, breathalyzer calibration, and officer observations.
Each of these defenses requires thorough investigation, legal research, and in many cases, expert testimony. A private DUI defense lawyer can devote the time and resources necessary to build these arguments effectively.
Why You Need a Private Attorney
DUI convictions carry long-term consequences — loss of driving privileges, steep fines, possible jail time, increased insurance rates, and a permanent criminal record. Even if your case involves “just sitting in the car,” prosecutors treat these charges seriously.
A private attorney can:
- Conduct an independent investigation.
- Cross-examine the arresting officer on technical and factual inconsistencies.
- File motions to suppress unlawfully obtained evidence.
- Negotiate with prosecutors from a position of strength.
Your defense is not just about avoiding penalties today — it is about protecting your future.
The Risks of Self-Representation or Relying Solely on a Public Defender
Some people believe that if they were not actually driving, they can “explain” the situation and avoid conviction. That is a risky approach. Officers write reports in ways that strengthen the state’s case, and prosecutors rely heavily on the broad definition of “actual physical control.”
Public defenders are dedicated attorneys, but they carry large caseloads. A private DUI defense lawyer can dedicate significantly more time to your case, prepare detailed cross-examinations, and secure expert witnesses if necessary.
How We Approach These Cases
When someone hires us for a DUI arrest involving a parked vehicle, we immediately:
- Review the arrest report and body cam footage to assess officer conduct.
- Interview witnesses who can testify about why you were in the car.
- Inspect the vehicle for mechanical issues that could establish inoperability.
- Challenge the traffic stop or approach if there was no valid reason for the officer’s contact.
- Analyze chemical testing procedures for legal and scientific flaws.
This thorough, hands-on approach has helped us secure dismissals, reduce charges, and acquittals in cases that initially seemed unwinnable.
FAQs: DUI Arrests While Sitting in a Parked Car in Florida
Can I be charged with DUI if I’m in the back seat with the keys in my pocket?
Yes, but the defense is stronger. The prosecution must prove you had the capability to operate the vehicle. Being in the back seat makes it harder for them to show you were in actual physical control, but it does not automatically prevent arrest.
What if the car was not running?
The car does not have to be running for an officer to claim you were in control. If the keys were accessible and you were in the driver’s seat, they may still arrest you. However, this fact can be a powerful point in your defense.
Will I lose my license even before trial?
Yes, under §322.2615, your license can be administratively suspended soon after arrest if you blew over 0.08 or refused testing. You have only 10 days to request a hearing to contest that suspension.
What if I never intended to drive?
Intent is not a required element under the statute. The focus is on the capability to operate the vehicle, not whether you planned to drive. This is why having a lawyer to challenge the control element is essential.
How can a private attorney help with the license suspension?
We can represent you at the administrative hearing, challenge the legality of the stop, and present evidence that you were not in actual physical control. Winning the administrative case can allow you to keep driving while the criminal case proceeds.
Can officers order me out of my parked car for a DUI investigation?
If an officer has reasonable suspicion that you are impaired and in actual physical control, they can detain you for investigation. However, if the initial approach lacked legal justification, any evidence obtained afterward may be suppressed.
What if I were using my car for shelter to sleep off alcohol?
Many people choose to sleep in their cars to avoid driving drunk. Unfortunately, under Florida law, this can still lead to a DUI arrest if you are in the driver’s seat with the keys nearby. We often defend clients in this exact situation.
Can my case be dismissed if the officer had no probable cause?
Yes. If the arrest lacked probable cause or the officer unlawfully detained you, we can move to suppress evidence. Without that evidence, the prosecution may be forced to drop the charges.
Do I have to answer questions from the officer?
No, you have the right to remain silent. Providing explanations at the scene often gives the officer more evidence to use against you. It is better to politely decline and contact your attorney.
Can I refuse the field sobriety tests?
Yes, but refusal can be used against you in court. Field sobriety tests are voluntary, but officers rarely tell you that. If you are arrested, the focus shifts to breath, blood, or urine tests governed by the implied consent law.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
If you were arrested for DUI while parked or sitting in your vehicle, the stakes are high. The law in Florida gives police and prosecutors wide latitude, but it also gives us opportunities to fight back.
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.