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The Two Most Common Myths Concerning Florida Driving Under the Influence Charges

Myth: I Can’t Be Arrested for a DUI in Florida if I Am Not Driving My Car

Many Florida residents are under the mistaken belief that if they aren’t caught driving their cars by police officers, they cannot legally be charged with driving under the influence (DUI). Under this mistaken assumption, people believe the following scenarios do not qualify as DUIs:

  • Sitting behind the wheel in a parking lot
  • Pulling over on the side of the road
  • Sleeping in the driver’s seat

Law enforcement in the state of Florida has wide latitude to charge drivers suspected of operating vehicles while under the influence of drugs or alcohol. Most arrestees are caught while operating the car on the road. However, other arrestees are not driving at all. In fact, the car might not even be on! The Florida DUI law has a funny way of wording the elements of driving under the influence.

According to the Florida jury instructions for DUI, the Florida prosecutor must prove two elements beyond a reasonable doubt:

  • The accused was either driving or in “actual physical control” of the car; and
  • The accused had a blood alcohol content of 0.08 or above or was under the influence of any amount of drugs or alcohol if that amount impaired his faculties.

“Driving” is self-explanatory, but what about “actual physical control?” The Florida Legislature made this phrase slightly generic on purpose, creating confusion for drivers like yourself who don’t quite understand what is and isn’t prohibited.

When you’re intoxicated after a fun night out at one of Florida’s festive bars, you may have good intentions of sleeping off your buzz or waiting in your car for a ride from a friend. However, these good intentions might not translate to good decisions. Florida judges have interpreted “actual physical control” to include situations that do not involve the operation or movement of a car, so you need to be careful.

When you are in “actual physical control,” you have to be inside of the car (or on the motorcycle). “Control” encompasses the ability to drive the car. Ability to drive is usually proven by a variety of evidence, such as:

  • The car belongs to you or is commonly driven by you;
  • The car is on;
  • The keys are in the ignition;
  • The keys are in your hand;
  • You are in the driver’s seat;
  • Your hands are on the steering wheel or stick shift;
  • You made statements to officers about driving or attempting to drive the car; and/or
  • Other evidence of intent to operate.

So what are you supposed to do if you are drunk, your car is in the parking lot, and you need to get home? If you are with friends, you should give your keys to a sober friend and request that they drive your car home. If all of your friends are intoxicated, you can call a taxi or try walking home. If you are alone, you can call a friend or family member to pick you up. If none of those options are possible, you can wait until you are sober. However, this is risky because it can take hours to sober up depending on your level of intoxication. Remember – your driver’s seat is not the place to wait to sober up.

Driving Under the Influence Charges Are Not Felony Charges

Under Florida law, you can be convicted of driving under the influence if you drive after consuming alcohol and/or drugs and the alcohol and/or drugs impairs your normal faculties or your ability to drive, or if you have a blood or breath alcohol concentration of 0.08 percent or more. Driving under the influence is generally considered a misdemeanor offense in Florida, but some facts and circumstances can increase the penalties upon conviction and/or elevate the offense to a felony, where a conviction can result in much harsher penalties than those associated with misdemeanor offenses.

What Factors Can Aggravate My DUI Sentence Or Elevate My DUI Offense To A Felony?

Aggravating factors are those facts or circumstances that make a typical run-of-the-mill driving under the influence offense a more serious offense warranting elevated classification of the offense and/or increased penalties under the law. Some factors that warrant an aggravated or felony DUI charge include the following:

Aggravated DUI

  • Ordinarily, a second DUI conviction is still considered a misdemeanor, but a second conviction is penalized by larger fines and lengthier jail sentences than a first time DUI;
  • A third DUI, if it occurs more than ten years after a prior conviction subjects you to larger fines and lengthier jail sentences;
  • If your breath alcohol concentration is 0.15 percent or higher, you are also subject to larger fines and lengthier jail sentences even if it is your first DUI;
  • If at the time of your DUI offense, a child, or person younger eighteen years, was a passenger in your vehicle, you can be subject to larger fines and lengthier jail sentences.

Felony DUI

  • A third DUI conviction if it occurs within ten years after a previous conviction is considered a third degree felony;
  • A fourth or subsequent DUI conviction, regardless of when the prior convictions occurred, is considered a third degree felony;
  • If your DUI caused or brought about serious bodily injury to another, the offense is considered a third degree felony.

Manslaughter DUI

  • If your DUI caused the death of anyone or any unborn child, the DUI is considered manslaughter, and is a second degree felony;
  • The offense is a first degree felony if you knew, or should have known that the accident or crash occurred, and you failed to provide the requisite information and to render aid to those injured.

In addition to fines and jail sentences, aggravated or felony DUI convictions can also include penalties such as probation, community service, mandatory treatment programs, license suspensions or revocations, vehicle impoundment, and installation of an ignition interlock device.

A driving under the influence conviction can have serious consequences whether it’s your first conviction, second conviction, or you caused significant injury to someone else in an accident that resulted from you driving under the influence of alcohol and/or drugs. Penalties for any DUI can include significant fines, jail time, mandatory treatment programs, community service, and license suspensions. If you have been arrested and charged with driving under the influence of alcohol and/or drugs, it is important that you speak with a seasoned and experienced criminal defense attorney right away.

We are Available 24/7 to Take Your Calls. Contact Us Today!

Protect your legal rights and fight for your DUI charge with the assistance of a Florida DUI lawyer from Musca Law. Musca Law has over 150 years of collective criminal defense experience, and our law firm can handle a wide variety of criminal charges. Get your case started by calling us at (888) 484-5057 today!

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