In Florida people can be arrested for Driving Under the Influence (DUI) even when they are not driving a vehicle. This situation occurs when someone has been drinking and decides that it would be better to “sleep it off” rather than risk themselves and others by driving while intoxicated. The car ignition is off and the driver asleep, yet law enforcement personnel can still make a legitimate DUI arrest.
The focus of this type of arrests is Actual Physical Control of the vehicle. The issue isn’t whether someone did drive under the influence, but whether they could have driven under the influence.
The Actual Physical Control laws were born of scenarios where there is a car accident with no driver behind the wheel. Nearby is a person who is legally intoxicated, owns the car in question, and has the keys to the car in their possession. There are no witnesses to prove that this person was driving the car. However, the ownership of the vehicle and the possession of the keys are evidence that this person had actual physical control of the car, allowing police officers to make a DUI arrest.
Actual Physical Control and the Non-Driver
Over the past several years the interpretations of these laws have expanded to include anyone who is intoxicated and behind the wheel of a car regardless of whether the car is in motion. The person inside the car could be asleep and still arrested for DUI. When determining Actual Physical Control in this situation, law enforcement officers consider:
- Where is the person seated? If they are in the driver’s seat they are determined to be in actual physical control of their vehicle.
- Where are the keys to the vehicle? If they are in the ignition, in the person’s hand, or close enough to be picked up and placed in the ignition, the person is considered to have actual physical control of the car. This is also true for anyone driving a vehicle with a push-button ignition.
Actual Physical Control vs. Common Sense
Arrests made under the APC laws as they relate to non-drivers are inconsistent with public safety. If someone realizes that they are impaired and are unable to drive, they are making a responsible choice by sleeping in their car.
While it is best to call a cab, walk, or ask a friend or family member for a ride home if intoxicated, sometimes sleeping in your car is the best option. In this situation:
- Place the keys as far away from you as possible, preferably in the trunk of the car.
- Sleep in the back seat of the car but if that is not possible, sleep in the passenger seat.
- Never leave the car running, even for light or to use the air conditioning.
You don’t want to get arrested for doing the right thing, but if this happens hire an attorney who understands the issues of a non-driver DUI.