DUI Elements Explained – Driving a vehicle

Driving Under the Influence (DUI), or as it is sometimes called, Drunk Driving, is a criminal offense in Florida and is enforced and prosecuted aggressively in the Clearwater / St. Petersburg / Tampa area.  The criminal sentencing penalties for DUI are severe and expensive.  As with any criminal charge, there are certain facts, or elements, which the prosecutor must prove beyond a reasonable doubt in order to get a conviction.  In general, a DUI results when a person is driving or in actual physical control of a vehicle while under the influence of alcohol or a chemical or controlled substance to the extent that their normal faculties are impaired; or while their blood alcohol level is .08% or more.  As with any criminal statute, some of the elements of DUI may be more complex than it seems at first.

Laws Are Rarely as Simple as They Appear

Of all the elements, or facts, of a DUI charge required to be proven, that of “driving or operating a vehicle” might seem to be the simplest to understand.  However, there are some important circumstances to be aware of in order to avoid committing a DUI without even being aware of it!  First of all, let’s pick apart the “driving element” of the Florida DUI statute the way a good DUI lawyer would:

  • What is “driving”?
  • Where do you have to be “driving”?
  • What is a vehicle?

In Florida “Driving” Means Parking or Sleeping

Although the element of “driving” is pretty intuitive and to most people clearly means that a person must be driving a moving vehicle on the road, under the DUI laws of Florida that is not necessarily the case.  In addition to driving your car or other vehicle, Florida DUI law prohibits being “in actual physical control” of a vehicle.  In other words, if a person is in or on a vehicle and has the capability to operate the vehicle, they are said to be “driving” for the purpose of the Florida DUI law, even if they are not actually operating the vehicle at the time.  So, someone who starts to drive home from a night of drinking and wisely decides they shouldn’t be on the road and then pulls into a parking lot and falls asleep in the car can be charged with a DUI.

The Key is the Key

In my 15 years as a prosecutor in Pinellas and Pasco Counties and 8 years as a defense attorney, I have seen many DUI cases which involved “actual physical control”.  These cases ranged from people who passed out behind the wheel at a stop light; who decided to pull of the road into a parking lot to sleep it off rather than drive farther; to people who never even left the parking lot of the bar they had been drinking at and instead decided to sleep in their car.  Some passed out or fell asleep with their engines running while in other cases the car engine was not even turned on.  Under the Florida DUI statute, all that is required is that the person be in a position to operate the vehicle and have the capability to operate it.  In most cases involving cars (people rarely try to sleep it off on a motorcycle!) the accused person is inside the car with the keys in the ignition, or on their person.  Under the law in Florida the location and access to the key is an important consideration in deciding whether or not the person had “the capability to operate” the car.

Put the Key Someplace Out of Reach (But Don’t Lock It in the Trunk)

These actual physical control cases are investigated and prosecuted aggressively by the police and prosecutors in the Tampa Bay area, however there are some factors which will make it much less likely that the police and State Attorney’s Office will consider your case to be a prosecutable DUI.  First, if the key to the car or vehicle is not in the ignition or easily reachable or in the person’s pocket, it would be much harder for the State Attorney to prove that the person had a capability to operate the car.  Therefore, should you ever decide to sleep in a car after you have been drinking alcohol, or taking chemical or controlled substances, you need to place the car keys in a secure place, not readily accessible to you.  The glove box would be a good choice; a purse in another part of the car, away from you, would also be a good choice.  Of course, like many decisions made after a few alcoholic beverages, it is possible to make judgment errors about this too.  Some people have been known to wisely decide to sleep in their cars after a long night of drinking, but then made an impaired judgment call by deciding to avoid a DUI actual physical control charge by locking their car keys in the trunk of the car!  Hopefully they woke the next morning in time to call for help opening the trunk before they had to be anywhere important.  Still, as decision go, that’s not so bad; after all, a locksmith is still cheaper than a DUI!

It would also be wise to avoid sitting in the front seat, and particularly behind the steering wheel, if you are sleeping one off.  Although Florida DUI law merely requires that you be in (or on) the vehicle, it would be tougher for the prosecutor to prove that someone had the capability to operate the car if they were found sleeping in the back seat, particularly with the engine off and the keys in the glove box.  In my past experience, the cases of actual physical control (APC) DUI which are prosecuted the most aggressively involve people who where found, usually asleep, in the driver’s seat, with the keys in the ignition and it was clear that they had driven first before pulling over.  Even cases which involved staying in the parking lot of a bar have been prosecuted as vigorously as a regular DUI where the engine was running, especially if the facts suggested that the person merely passed out before they could drive off, rather than made a decision to stay put.

Where Can a DUI Take Place?

Under Florida’s DUI laws, the prohibited act involves driving or having the capability to operate a vehicle.  There is no requirement that a DUI happen in any particular location or type of roadway.  Therefore, a DUI can be committed even off the roads and highways and even on private property.  Certainly any parking area of a business which is open to the public would be prohibited to DUI, since even privately owned property is considered public if the general public has access to it.  Even more, under Florida’s DUI laws, it is illegal to operate (or be in actual physical control of) a vehicle on private, posted to trespassing property.  However, other laws may prevent a police officer from entering or making a DUI arrest on posted private property without an arrest or search warrant.  But, it is important to remember that the law prohibits operating a vehicle while DUI no matter where the vehicle is located.

A Horse is a Horse, of Course?

One question that occasionally arises in Florida DUI law involves the definition of “vehicle”.  A vehicle is further defined in Florida law as a device which can transport, or draw, people or property upon a highway.  Interestingly, trains and trolleys are specifically exempted from the definition of vehicle, because they are limited to traveling on stationary rails or tracks.  However, other “devices” can be vehicles under Florida DUI law.  Bicycle DUI cases are not rare and the law is well settled that you cannot operate a bicycle if you are over the legal blood limits, or impaired, from alcohol or chemical substances.  Interestingly, the first bicycle DUI case in Florida occurred on Key West’s Duval Street during the 1980’s.  Since then bicycle DUI cases are not-uncommon and many have been charged and even successfully prosecuted in the Tampa Bay area, including Pinellas County.  Other devices which can be used to commit a DUI include riding lawnmowers, mopeds, scooters and even horse-drawn buggies or carts.  However, in Florida the jury is still out as to horseback riding, and it would appear that the Florida DUI statute would not include a drunken horseback rider, since a horse would not easily be termed a “device”, although any contraption tethered to the horse would be.  In some other States DUI horseback has been charged due to the difference in the definition of “vehicle”.  Presumably, in those cases, it was the rider who was intoxicated and not the horse!

In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney.  Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offence.  If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.

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13 Responses to DUI Elements Explained – Driving a vehicle

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  11. jon says:

    Wake up people. DUI’s are about money and nothing else. You can even be charged in your own yard while cutting the grass. This is BS. Just go back to sleep. It’s to late. Tyranny is here.

  12. Mike says:

    my current case is like this i spun out and go stuck in a ditch a few miles from my house after i got stuck i decided to drink the beer i just bought as i was finishing my last one a sheriff pulled up and conducted a dui investigation. In this case im trying to prove i was not in control of the vechicle because it was stuck more like buried, can i go to the the tow truck company myself and reguest info from them or do i have to go trough the court.

    • GPottsLaw says:

      Hi Mike,

      Thanks your comment. The answer to your question depends upon the rules of procedure in whichever jurisdiction you got arrested. You ought to get an attorney to handle your case for you; it would be a shame to get found guilty because of some oversight on your part due to inexperience or misinterpretation of the law. Good luck,

      Garry Potts

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