The “Not Driving” Defense

What happens if you were arrested for DUI but weren’t driving? These types of “no driving” or “not driving” cases arise for a variety of reasons, including:

• the suspect is found asleep in a vehicle parked in a parking lot, gas station, or off the roadway;
• the suspect falls asleep at an intersection or while sitting in traffic;
• the suspect is out of their vehicle by the time the officer arrives at the scene;
• a private citizen detains a suspected impaired driver or makes a citizen’s arrest;
• two people are accused of switching places in the driver’s seat after a crash; or
• the driver runs from the crash scene, leaving the passenger in the vehicle, who is then accused of driving.

Attorney for the “No Driving” DUI Defense in Tampa, FL

If you were arrested for DUI even though the arresting officer never saw you driving the vehicle, contact an experienced criminal defense attorney focused on DUI defense.

The “no driving” defense often comes into play when the officer finds someone “sleeping it off” on the side of the road or in a parking lot.

A jury is often reluctant to convict someone who pulled their vehicle off the roadway. Only the jury can decide whether the person was really in “actual physical control” of the vehicle.

If you were not driving, your attorney might consider filing a motion to suppress based on a bad stop or the failure to comply with any community caretaker function during a welfare check.

Our main office is located in Tampa, FL. We have additional offices conveniently located in New Port Richey in Pasco County, and Clearwater in Pinellas County, FL.

Call 813-250-0500.

The Requirement of the Officer’s Presence

In cases that don’t involve a crash, the first requirement is that the law enforcement officer generally may only make a warrantless arrest if the offense was committed in his or her presence as required by § 901.15, Fla. Stat.

The failure to follow this rule might result in all evidence being suppressed at trial.

Section 316.645 creates an exception to this general rule when, in the course of a personal investigation into a traffic crash, an officer gains reasonable and probable grounds to believe that a driver of a vehicle involved in the crash has committed an offense under Chapters 316 or 322, Fla. Stat., in connection with the traffic crash.

Section 316.645, F.S., provides:

“A police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash.”

Before Florida Statute 316.645 is applicable, it must be proven that a traffic crash occurred. In Florida, the term” traffic crash” has been defined as requiring “some observable result of forceful contact with another vehicle, person, or object before an investigation can be commenced, or a warrantless arrest made.” Department of Highway Safety and Motor Vehicles v. Williams, 937 So.2d 815, 817 (Fla. 1st DCA 2006).

In State v. Prest, 14 Fla. L. Weekly Supp. 663a (Fla. 7th Cty. Ct., April 17, 2007), the court applied the Williams holding to find that the act of backing an SUV into a ditch did not equate to “a breaking to pieces by or as if by collision, “an instance of crashing,” or a “com[ing] together with solid or direct impact.”

Read more about DUI cases involving no driving but actual physical control.