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Plant City Observer Wednesday, Jun. 1, 2016 2 years ago

But I wasn’t driving. How can I get a DUI?

Plant City lawyer Shiobhan Olivero breaks down the rules for DUIs.

Here is a common scenario: you go out with friends for the evening and have a few drinks.  You realize you’ve had one too many and decide to wait it out in your car in the parking lot while you sober up. Or, perhaps while driving home, you realize you’ve had too much to drink, so you pull over on the side of the road to sleep it off.

While you might think you are doing the responsible thing, or may even believe you are protecting yourself from a DUI charge, this is a criminal offense in Florida. It’s called actual physical control of your vehicle, and it can lead to a DUI charge.

The DUI laws in Florida allow for a conviction for driving under the influence even though you weren’t actually driving.

What is actual physical control?

Actual physical control of a vehicle means the person must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether the person is actually operating the vehicle at the time.  

There are factors considered to determine if a person is in actual physical control, including: 

  • Possession over the key to the vehicle or proof the vehicle can operate without a key.  (Example: keys in the ignition; keys on the driver’s person or in his pocket; keys in close proximity to the driver in or on the vehicle so the driver can easily access the key.)
  • If the person is able to drive the vehicle at a moment’s notice.
  • The location of the driver in or on the vehicle (Example: the driver’s seat, passenger’s seat, outside the vehicle or some other area of the vehicle.)
  • If the engine was running, lights were on and the hood was warm.
  • If the car was found at a location it could have been driven to.
  • Whether the vehicle was operable.


Some examples of actual physical control found by courts include:

  • A person who had been drinking sat in the front seat of his vehicle with the keys in hand or in his pocket.
  • A person was sleeping in the back seat of the vehicle with the keys. 
  • A person was sleeping in the vehicle and the keys were located outside of the vehicle.
  • Cases involving cars that had a flat tire or where the battery had died. Although the vehicle was technically inoperable at the time of investigation, courts have held that the driver can still be found in actual physical control based on circumstantial evidence that the vehicle somehow got to that location when it was operable.
  • Cases when a driver “could have at any time started the automobile and driven away.”

Walking away from a recently crashed car and sitting in a car on the side of the road that was stuck in a ditch.

These examples show you that even if you are sitting in your parked car to sleep off the effects of a night of drinking — even if the car is turned off and in park — you still can be arrested and charged with a DUI. 

Placing the keys outside the car does not save you from being in actual physical control of the vehicle and charged with DUI.

How can you avoid this mess?

You should be careful to not drive when you have been drinking. Florida has tough penalties for DUI, and those penalties continue to get tougher. 

And, as you can see, it’s also not a good idea to sleep it off in your car. You may think you are making a responsible choice by not driving home, but the law treats it the same.  

The best advice is to avoid the situation entirely by having a designated driver, calling for a cab or having a friend or family member come get you.

Shiobhan Olivero was born and raised in Plant City. She has been practicing as an attorney since 2010 and has offices in Plant City, Tampa and Spring Hill. Her law offices can be reached at(813) 534-0393 or by email at [email protected].


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