NAPLES DUI LAW – Actual Physical Control

Naples DUI Law:  “But I wasn’t driving . . . I was trying to sober up!”

Be careful the next time you have a few drinks and plan to sober up in your car before driving.  The common scenario involves a person that realizes they have had one too many and decide to wait in their car while they sober up.   Or perhaps the person while driving home realizes they have had too much and pulls over on the side of the road to sleep it off.

While they might think they are doing the responsible thing or may even believe this will protect them from DUI, the Florida Legislature has actually made this a criminal offense.  The intent is likely to keep people from placing themselves behind the wheel of a car when their judgment may be impaired.

According to the Florida Standard Jury Instruction, to prove the Crime of DUI, the State must prove the following two elements beyond a reasonable doubt:

1)   That the person drove or was in actual physical control of a vehicle, and

2)   While driving or in actual physical control of the vehicle, was under the influence of an alcoholic beverage or a chemical or a controlled substance to the extent that their normal faculties were impaired, or had a blood/breath alcohol level of .08 or more grams of alcohol per 100 milliliters of blood/210 liters of breath.

Furthermore, according to the Florida Standard Jury Instructions, “actual physical controlof a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.  Some of the factors to be considered in determining whether an individual is in actual physical control are:  1) the location of the car keys, unless the vehicle can be operated without the use of keys; 2) the location of the person in or on the vehicle; and 3) whether the vehicle is operational.  The courts will likely consider all of these factors in determining the validity of a DUI charge.

While it is safe to say that you may be in the clear if you sleep in the trunk of a car that is missing an engine and wheels and is up on blocks after you’ve thrown the keys in a nearby pond . . .you may want to steer clear of waiting in your car while you sober up.  The best advice is to avoid the situation entirely by calling for a cab, the consequences of a DUI conviction are extremely costly, and can easily be avoided by spending a relatively minuscule amount on a safe ride home.  To contact a Naples DUI Attorney, please call (239) 775-1004.

Juan Escobar

Naples Criminal Defense Attorney

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