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Actual Physical Control

Can you get a DUI even if the officer never saw you driving?

Over the years, the attorneys at Sammis Law Firm in Tampa, FL, have been retained to represent clients after they were arrested for DUI even though they didn't drive. Actual physical control cases involve a person being found outside the vehicle by the time law enforcement arrives or sitting in a parked vehicle when the officer approaches.

DUI defense attorneys sometimes call these the "parking while intoxicated" or "no driving DUI defense."

A conviction for DUI requires proof that the defendant either:

  • drove the vehicle while under the influence; or
  • was in actual physical control of the vehicle.

For the prosecutor, proving actual physical control cases at trial are usually much more difficult. In these cases, a criminal defense attorney might be able to beat the case in one of the following ways:

  • before trial during a pre-trial hearing on:
    • a motion to dismiss for insufficient evidence; or
    • a motion to suppress illegally obtained evidence after an arrest with no probable cause; or
  • at trial through a judgment of acquittal (JOA) motion.

Even if the case gets to a jury, many jurors are reluctant to find the "actual physical control" evidence to be sufficient if the officer never saw the person driving. 

Attorney for DUI with "Actual Physical Control" in Florida

If your DUI involves an allegation that you were in actual physical control of the vehicle, even though the officer never saw you driving, then contact an experienced DUI defense attorney at Sammis Law Firm. We fight DUI cases from our main office in downtown Tampa in Hillsborough County, FL. We also have a second office located in New Port Richey in Pasco County.

Whether this is your first DUI or a second offense, we can help. We understand the best ways to fight DUI cases involving a breath test, blood test, urine test, or refusal to submit to a chemical test

If you were accused of driving or being in actual physical control of the vehicle, call us to learn more about the best DUI defenses that might apply.

Contact us for a free consultation to discuss the charge pending against you, the best defenses to fight that charge, and the best ways to avoid the typical penalties imposed in that type of case. 

Find out whether you can beat your actual physical control DUI case. Call 813-250-0500.


Examples of "No Driving" DUI Alleging Actual Physical Control

Common examples of cases involving "no driving" or an accusation of "actual physical control" include:

  • the defendant drove to the scene but got out of his vehicle right before the police arrived (if no crash occurred and the driving didn't happen in the officer's presence, then a warrantless arrest would be illegal); 
  • the vehicle is involved in a crash, and by the time the police arrive, the defendant is standing outside the vehicle;
    • because of the crash, the officer might make an arrest even though he didn't see the defendant driving, but only if the officer has:
      • a wheel witness (a witness who saw the defendant driving or sitting behind the wheel); or
      • sufficient circumstantial evidence to place the defendant behind the wheel;
  • the defendant passes out or falls asleep while the vehicle is on the roadway (often at a stop sign or traffic signal) and the officer finds the defendant sitting in the driver's seat with his or her foot resting on the brake while the engine is running or not running, when the keys are in easy reach of the driver); 
  • the defendant is found sleeping in the vehicle that is legally parked on the side of the road or in a parking lot; 
  • the defendant is found sleeping in the vehicle on private property while legally parked; 
  • someone else drove to the scene and the defendant sat in the driver's seat with no intention of driving; or
  • the defendant is found sitting in the driver's seat but claims that he or she entered the vehicle to charge a cell phone or turn on the heater or air conditioning without any intention of driving.

What constitutes actual physical control when the location of the keys is unclear? 

Law enforcement officers are trained to be mindful of all factors that would indicate the driver is in actual physical control if the key is not in the ignition including:

  • a showing that the keys were within easy reach of the driver (on the floorboard of the driver's side or in the center console); or
  • for “push-to-start” vehicles, the focus is on the proximity keys/fobs or phone apps all allow drivers to start vehicles without putting a key into the ignition.

Actual Physical Control Defined in Florida

Sections 322.2615(7)(a)(1) and (b)(1), Florida Statutes (DUBAL and Refusal Cases) require the following to be determined:

“Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.”

The determination is made by looking at the totality of the circumstances:

“In determining whether the police have probable cause . . . the sufficiency of the knowledge of the officers must be determined, not by analysis of the effect of each known circumstance in isolation, but by a conclusion as to what a reasonable man, knowing all the facts which the officers knew from their investigation would have believed under the circumstances.”

State v. Keen, 384 So. 2d 284, 286-287 (Fla. 4th DCA 1980), quoting State v. Outten, 206 So. 2d 392 (Fla. 1968). In other words, whether a driver was in actual physical control of his or her vehicle is fact-specific to a particular case.

“A determination of ‘whether or not an individual is in actual physical control of a motor vehicle while under the influence is fact-specific and must be determined on a case-by-case basis.’” Heath v. Dep't of Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 304a (Fla. 9th Cir. Ct. 2006).

In DHSMV v. Prue, 701 So. 2d 637, 639-40 (Fla. 2d DCA 1997), the court found the case law supported the hearing officer's findings under the facts of this case where Prue was the only one in the vehicle and the keys to the vehicle were either in the ignition or near enough for Prue to use them to start the vehicle and drive away. See Griffin v. State, 457 So.2d 1070 (Fla. 2d DCA 1984); Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 1996); Baltrus v. State, 571 So.2d 75 (Fla. 4th DCA 1990); Mitchell v. State, 538 So.2d 106 (Fla. 4th DCA 1989); Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988).


Sufficient Proof at Trial of Driving or Actual Physical Control

At trial, the issue is whether there was sufficient proof that the subject was driving or in actual physical control of the vehicle, such that the proof rebutted a reasonable hypothesis of innocence. The issue can be raised at trial during a motion for judgment of acquittal (JOA).

For a person to be found guilty of driving under the influence, there must be proof the person was driving or in actual physical control of a vehicle. § 316.193, Fla. Stat. In Florida, the term "actual physical control" is defined to mean that the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether the defendant is actually operating the vehicle at the time.

For example, in Griffin v. State, 457 So. 2d 1070, 1072 (Fla. 2d DCA 1984), the court found that the defendant, who was asleep in a parked vehicle but had his foot on the brakes, was in actual physical control of the vehicle.

The term "actual physical control" means a person's “capability to operate the vehicle” and capability means “practical ability.” State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011). 

The term "physical control" also means a showing that “the keys to the vehicle were either in the ignition or near enough for [defendant] to use them to start the vehicle and drive away.” Id. at 78 (citing State, Dep't of Hwy. Safety & Motor Vehicles v. Prue, 701 So. 2d 637 (Fla. 2d DCA 1997).

The courts have found that “evidence that the key was in the ignition does not inexorably lead to the conclusion that the defendant was in actual physical control of the vehicle.” Fielsman v. State, 537 So. 2d 603, 606 (Fla. 3d DCA 1988). Instead, the presence of the key in the ignition is merely one fact to be considered. Id.

At least one appellate court in Florida has indicated it was not “willing to stretch the concept of actual physical control to a case where . . . the [d]efendant is separated by a physical barrier from the vehicle keys.” State v. Perez, 24 Fla. L. Weekly Supp. 431a (Fla. Leon Cty. Ct. July 8, 2016). 

In Perez, the court found that the officer did not observe defendant in actual physical control where [the] defendant was in the vehicle but the keys were not and there was no evidence defendant attempted to retrieve the keys.


Actual Physical Control of a Jointly Occupied Vehicle in Florida

When the vehicle is jointly occupied, a defendant's knowledge and ability to control must be established by independent proof, which could include “either evidence of actual knowledge of the contraband's presence or evidence of incriminating statements and circumstances from which the jury might lawfully infer the accused's actual knowledge.” See generally, Ogle v. State, 820 So. 2d 1054, 1056 (Fla. 4th DCA 2002).

For example, in R.C.R. v. State, 174 So. 3d 460 (Fla. 4th DCA 2015), the court found that the evidence did not show proof of actual or constructive possession of drugs where the defendant did not have exclusive control of the area where the contraband was found and the contraband was not in plain view, which also put defendant's knowledge of the contraband at issue. 

If you were arrested for driving under the influence, the charge requires proof that you were driving or in actual physical control of the vehicle. 

If the initial responding officer, doesn't see you actually driving, then this issue might provide a very good defense to the charge, especially if:

  • the officer merely sees you near the vehicle, but not actually sitting in the driver's seat;
  • another person is also standing near the vehicle;
  • the keys are not in the ignition;
  • the car is not actually running;
  • the person arrested is not the registered owner of the vehicle. 

Keep in mind, if the vehicle is jointly occupied, then Florida law necessitates independent proof to establish constructive possession.


The 2019 Hearing Officer Training Manual on Actual Physical Control

The 2019 Hearing Officer Training seminar was presented by DHSMV Assistant General Counsel Mark Mason and Elana J. Jones. The training was provided to the new attorney hearing officers.

The seminar material included a section on Actual Physical Control cases involving no solid proof of driving. The materials also presented four scenarios to teach the attorney hearing officers more about the law when it came to finding sufficient evidence regarding the actual physical control element.


Scenario #1:

Officers called to the scene of an accident. No damage is done to one of the vehicles. Individual next to one of the vehicles confesses to driving. Later, when one of the officers asks the individual to produce his driver license and registration, he retrieves his driver license from his wallet. He then goes over to the vehicle, opens it, retrieves the registration from the vehicle and gives it to the officer.

Is Actual Physical Control established?

YES - By standing near the vehicle and having the ability to enter the vehicle and retrieve documents, Defendant was in a position to control the movement of the vehicle. The presence of keys was not mentioned.


Scenario #2:

Trooper dispatched to the scene of the accident. He observes two cars in the parking lot. Petitioner is in one of the cars in the driver’s seat of the car. Upon speaking with the driver, Trooper notices she has glassy, bloodshot eyes and the odor of alcohol emanated from her face. The driver is slouched over, sloppy in appearance, had slurred speech, and had trouble exiting the car and locating her driver's license. The front end of the car was damaged.

Is Actual Physical Control established?

YES - The Trooper’s observations were sufficient evidence for the hearing officer to conclude that the Petitioner was in actual physical control of the car. Under the totality of the circumstances presented to the Trooper was a key factor in the court’s decision. The court noted the Petitioner was sitting behind the wheel, exhibited indicia of impairment, and that the car in which she was sitting had damage.


Scenario #3:

Deputy called to a scene (non-accident) at the request of fellow Deputy to conduct a DUI investigation. The Deputy met the driver, who was sitting in his vehicle, listening to the radio. When the driver exited the vehicle, the Deputy smelled alcohol on the driver’s breath, noted the driver’s eyes were glassy, and that he had slurred speech. The Deputy administered field sobriety exercises to the driver, which he performed poorly. The Deputy arrested the driver.

Actual Physical Control established?

YES - The Deputy’s observations provided sufficient probable cause to believe Petitioner was in actual physical control of the vehicle. There was no need, contrary to Petitioner’s assertions, to establish or note in the Criminal Report Affidavit or DUI whether or not the engine was running, the vehicle was in park or whether the key was in the ignition.


Scenario #4:

Officer called to a scene at the request of Fire/Rescue due to a vehicle parked in the drive-thru of a McDonalds. Prior to his arrival, Fire/Rescue arrived on the scene, observed the driver asleep behind the wheel, with the keys in the ignition and in neutral gear. One of the Fire/Rescue officials awakened the driver and instructed him to take the keys out of the ignition. The official then placed the keys on top of the vehicle.

The driver told the Fire/Rescue that he was tired and had been drinking earlier. The Officer called to the scene observed the driver’s speech to be slurred, that he had watery and bloodshot eyes, and detected the odor of alcohol coming from his breath. The driver refused a breath test, but eventually admitted he had several beers, including one he consumed an hour prior. The Officer placed the driver under arrest.

Actual Physical Control established?

NO—In order for a driver to have actual physical control, must be in or on the vehicle and have the capability of operating the vehicle, whether or not he is actually doing so. In this case, the court determined that the driver was incapable of operating the vehicle due to fire rescue having placed the keys on top of the vehicle. Thus, it was not established he had actual physical control of the vehicle.


This article was last updated on Wednesday, September 17, 2019.