Understanding Actual Physical Control Laws and How a Private DUI Defense Attorney Can Protect You

When most people think of DUI charges in Florida, they imagine a police officer pulling someone over while their vehicle is moving. But under Florida law, you do not have to be actively driving to be charged with DUI. As a Florida criminal defense attorney, I've seen countless cases where a person was arrested while parked, sleeping in their car, or even sitting behind the wheel without the engine running. The law allows for DUI charges in these scenarios under what is called "actual physical control."

If you are facing a DUI arrest in a situation where you were not actually driving, you must take the charges seriously. The penalties for a DUI in Florida can change your life, and without a private defense attorney building your case, you may face unnecessary jail time, license suspension, or a permanent criminal record.

What Florida Law Says About DUI Without Driving

The primary statute governing DUI in Florida is Florida Statute § 316.193. It defines DUI as follows:

Statute Text: "A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) 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 set forth in s. 877.111, or any substance controlled under chapter 893, 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."

This statute is crucial because it doesn't limit DUI to "driving." The law explicitly states "driving or in actual physical control of a vehicle." This means that even if your car is stopped or parked, you could be charged if law enforcement believes you had the ability to operate the vehicle while impaired.

The term "actual physical control" is interpreted broadly in Florida courts. If you are behind the wheel and have the ability to start or move the vehicle, prosecutors often claim that you were in control, even if the car was off or you had no intention to drive.

Why This Law Leads to Unexpected Arrests

Many people try to do the responsible thing by pulling over to rest or sleep after drinking, thinking they are avoiding a DUI. Unfortunately, Florida law does not always distinguish between driving and having control of a vehicle while impaired. If you are found in the driver's seat with the keys in your possession, police can arrest you for DUI.

This is where having a private DUI defense attorney is essential. Prosecutors must prove actual physical control, and there are defenses that can challenge this. Without an experienced private lawyer, you risk a conviction based on assumptions rather than facts.

Real Case Example: DUI Charge Dismissed While Client Was Sleeping in a Parked Car

One client of mine was arrested in Tampa after an officer found him asleep in his vehicle in a parking lot. The keys were in the ignition, but the engine was off, and the car was in park. He had chosen to sleep it off after a night out, believing he was making a safe choice. The officer claimed he was in "actual physical control" and arrested him for DUI.

We aggressively challenged the charge by showing:

  • The car never moved, and there were no witnesses placing him on the road.
  • The engine was cold, indicating the vehicle hadn't been driven recently.
  • The keys were only in the ignition to keep the air conditioning running briefly before he fell asleep.

By presenting this evidence and expert testimony about vehicle operation, we convinced the court that he did not pose an immediate threat to operate the vehicle while impaired. The DUI charge was dismissed entirely.

Without private representation, this client could have faced a conviction with mandatory fines, license suspension, and even jail time, all for trying to avoid driving under the influence.

Elements the State Must Prove

For a DUI conviction in Florida under § 316.193, the state must prove beyond a reasonable doubt:

  1. You were driving or in actual physical control of a vehicle.
  2. You were under the influence of alcohol or drugs to the extent that your normal faculties were impaired, or you had a blood alcohol level of 0.08 or higher.

If the state cannot establish both elements, the charges cannot stand. A private attorney can identify weaknesses in the prosecution's case and develop a strong defense strategy tailored to your specific facts.

Defenses to DUI Charges When You Weren't Driving

There are several potential defenses we use in these cases. Some of the most effective include:

Lack of Actual Physical Control

We argue that you were not in a position to operate the vehicle. For example, if you were in the passenger seat, the backseat, or asleep with the keys out of reach, it's harder for prosecutors to prove control.

Vehicle Inoperability

If the car was broken down, out of gas, or otherwise incapable of being driven, it undercuts the state's claim that you could have driven while impaired.

Unlawful Stop or Arrest

If the officer approached or arrested you without proper legal grounds, any evidence obtained could be suppressed, weakening or ending the case.

Inaccurate Test Results

Breath or blood tests are not infallible. We challenge the accuracy of the results, the machine's calibration, and whether proper procedures were followed.

A public defender may not have the time or resources to fully investigate these defenses, but as your private attorney, I can dedicate the attention and expert support needed to fight for your rights.

Other Florida Statutes That May Apply

DUI arrests often come with additional charges, especially when the vehicle is stationary in unusual circumstances. These can include:

  • Florida Statute § 322.2615: Administrative suspension of your license for refusing a breath test.
  • Florida Statute § 316.1936: Possession of an open container of alcohol in a motor vehicle.

Even without driving, you can face multiple penalties from both the criminal and administrative sides. A private lawyer can handle all aspects of the case, including DMV hearings, to protect your license and record.

Why You Need a Private Attorney in These Cases

DUI charges can follow you for life, affecting employment, insurance rates, and your ability to drive. When you weren't even driving, the situation feels especially unjust. But prosecutors aggressively pursue these cases, and you need someone equally aggressive in your corner.

Private counsel has the time to:

  • Gather surveillance footage to show you never drove.
  • Call witnesses who saw you enter the car only to sleep.
  • Bring in forensic experts to analyze the vehicle's state at the time of arrest.
  • Negotiate with prosecutors for dismissal or reduced charges.

Your freedom and future are too important to leave to chance. Hiring a private DUI defense attorney gives you the best chance at avoiding harsh penalties for something that may not even qualify as a true DUI under Florida law.

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.

Florida Drunk Driving Defense Frequently Asked Questions (FAQs)

Can I really be arrested for DUI if I wasn't driving?

Yes. Florida law allows police to charge you if they believe you were in actual physical control of a vehicle while impaired. This means you could be arrested if you're behind the wheel with the keys in reach, even if the car isn't moving. These cases are often defensible with the help of a private attorney who can show that you never intended or were capable of driving.

What does "actual physical control" mean under Florida law?

Courts have interpreted actual physical control to mean you had the ability to operate the vehicle while impaired. This can include sitting in the driver's seat with the keys nearby, or even having the car running while parked. It's a broad definition that gives law enforcement discretion to make arrests in non-driving situations.

Can I avoid DUI charges by sleeping in my car instead of driving?

Sleeping in your car is safer than driving drunk, but it doesn't guarantee that you won't be arrested. Police may still claim you had control of the vehicle. To minimize the risk, avoid sitting in the driver's seat, keep the keys out of the ignition, and place them somewhere inaccessible. If you're arrested anyway, a defense attorney can argue you were not in control.

What penalties can I face for DUI without driving?

The penalties are the same as if you were driving: fines, license suspension, mandatory DUI school, probation, possible jail time, and a permanent criminal record. The severity depends on whether it's your first offense, your blood alcohol level, and other factors. A private lawyer can often negotiate for dismissal or reduced penalties.

Is refusing a breath test a good idea in this situation?

Refusing a breath test can result in an automatic administrative suspension of your license under Florida Statute § 322.2615. Whether refusal helps or hurts your criminal case depends on the circumstances. A private attorney can review your situation and challenge the suspension while defending against the DUI charge itself.

How can a private lawyer help me fight these charges?

A private lawyer investigates every detail of your case. This includes whether you were actually in control, whether the stop or arrest was lawful, and whether the evidence is reliable. We often secure dismissals or reduced charges by presenting a strong defense that public defenders may not have the time or resources to build.

Do police need probable cause to arrest me in a parked car?

Yes. Officers must have a reasonable belief that you were in control of the vehicle while impaired. If they lacked probable cause, your attorney can file a motion to suppress the arrest and any evidence that followed. This is a powerful tool to get charges thrown out.

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

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.