In every Florida DUI or DUI Manslaughter case, there must be proof of “driving” or “actual physical control.” If a police officer or another witness is able to identify you as the individual who moved the vehicle (however short the distance,) then the element of “driving” is satisfied. In some cases, the prosecutor will attempt to prove that you were the driver by your own admissions.
The Prosecutor’s Use of Circumstantial Evidence in a DUI
Can They Prove You “Drove” a Vehicle?
The prosecutor may have greater difficulty in meeting their burden when they are forced to prove your driving through circumstantial evidence. A “circumstantial evidence” scenario typically arises in the context of a motor vehicle accident where the accused was never seen in control of the car. For example, consider the following situation:
A Pinellas County Deputy Sherriff is on routine patrol in an isolated area when he observes a vehicle stuck in a drainage ditch.
The driver’s side door is open and an adult male is observed standing on the paved road adjacent to the vehicle.
There are no other persons in the area.
The hood and front grille of the vehicle are warm to the touch. This suggests that the vehicle’s motor was recently running.
Further investigation reveals that the vehicle is registered to the suspect who smells of alcohol.
The bottom of the suspect’s pant legs are wet. His wet pant legs are consistent with someone who was forced to exit the vehicle and walk though the watery ditch to gain access to the roadway.
Under these facts, the deputy lacks an eye witness (commonly referred to as a “wheel witness”) to testify that they saw the male individual drive the vehicle into the ditch. Yet, everyone knows that the vehicle could not have driven itself. Thus, it is a reasonable inference under the circumstances that the male suspect had swerved off of the roadway and crashed the vehicle into the ditch. Thus, through “circumstantial evidence” a judge or jury may conclude that the male suspect “drove” the vehicle.
Every case is different. In fact, most DUI cases that rely on circumstantial evidence are typically not as straight forward as the aforementioned example. In fact, when a prosecutor lacks a “wheel witness,” it can often spell trouble in proving the case. See: Why not DUI? No Driver identified – Tampa Bay Times It is therefore important to have an experienced lawyer evaluate your DUI case. A circumstantial evidence DUI case can sometimes be a good candidate for a Pinellas County DUI Defense attorney to have his client’s DUI charge reduced to a reckless driving offense.
What is “Actual Physical Control” in Florida
Many clients come to us after their arrest for DUI or DUI Manslaughter and we determine that the prosecutor will not be able to prove “driving” through direct or circumstantial evidence. At this juncture, our DUI defense team must look to whether the prosecutor can alternatively prove that our client exercised “actual physical control” of the vehicle. In order to prove “actual physical control,” (commonly referred to as “APC”,) the prosecutor must show that:
The accused was observed seated “in” a motionless vehicle. (In the case of a motorcycle, “on” the bike);
The accused had the capability to operate the vehicle. (This includes the present ability to operate, move or park the vehicle);
The vehicle was operable. (Capable of being started and driven)
Again, the facts of every case are different. However in determining the sufficiency of evidence to establish an APC case, the courts must look to the “totality of the circumstances.” There are generally three major considerations:
Whether the accused had actual or constructive possession of the key to the vehicle’s ignition. Note that the key need not necessarily be in the ignition or found on the person of the accused. Under the “constructive possession” theory, the key need only be shown to be accessible to the accused and evidence exist that he knew of its whereabouts;
Whether the accused was observed positioned in the driver’s seat behind the wheel; and
What if I Never Intended to Drive?
Motorists often pull their vehicle over and park their car when they realize that they may be unfit to drive. This sets them up for a DUI APC arrest. As a result, the Florida law seems to impliedly encourage impaired motorists to continue driving in an effort to “make it home.” It then becomes a dangerous challenge to make it to their destination without detection by law enforcement or involving themselves in an accident.
An individual who gets behind the wheel of a parked car with no intention to drive, (for the limited purpose of sleeping off the effects of the alcohol or drug) also sets himself up as an easy target for a DUI arrest. Remember, that the prosecutor need not prove that you intended to drive. He only needs to show that you either drove or were in actual physical control.
It is not hard to find fault with Florida’s statutory APC provisions. Not surprisingly, some states, such as Ohio, have made APC cases a lesser offense than a DUI. See: O.R.C. 4511.194 In those states, an APC case carries fewer penalties, less stigma and is preferable to motorists holding commercial drivers licenses. Yet, the Florida appellate courts have upheld the constitutional validity of our APC statute on the following grounds:
A legitimate government interest exists in apprehending impaired individuals who are in Actual Physical Control of a vehicle “before they strike” and endanger others on the road. See: Lamore v. State;
The APC statute protects the public from the danger of an impaired person who places himself behind the wheel and could with little difficulty start the vehicle and drive away.
APC Cases.. Good Candidates for Reckless Driving Reduction
In Florida a single DUI statute FS 316.193 contemplates both “Driving” and “Actual Physical Control.” Therefore, to have a DUI charge reduced in Florida means having your lawyer secure a reduction to a “Reckless Driving” offense. Fairness and equity can sometimes be called upon in convincing the prosecutor that reducing the DUI charge is in the best interests of justice. Consider some of the following compelling scenarios:
Drivers who began to feel the effects of alcohol and elected to do the prudent thing by pulling over and lawfully parking their vehicle;
A person who exited a drinking establishment, recognized that he was unfit to drive and elected to enter his vehicle for the sole purpose of sleeping;
Spouses or “significant others” who were consuming alcohol and then became embroiled in an argument. Whereupon one left the residence and sat in his vehicle to avoid a further escalation of the domestic dispute;
A driver who safely makes it home to his driveway, but is then apprehended by the police because he delayed exit from his vehicle due to completing a cell phone call.
An individual phones a friend to drive him home, but imprudently sat in his car with the air conditioning running while await his friend’s arrival.
As discussed above, a Pinellas prosecutor faces a greater challenge when he attempts to prove an Actual Physical Control case. As a result, a St. Petersburg DUI lawyer can sometimes use both legal arguments and mitigating factual circumstances as combined leverage to secure a reduction from a DUI to a Reckless Driving offense. See the numerous benefits of getting a DUI charge reduced to a Reckless Driving offense.
We Can Help in Your DUI Case
If you have been arrested for a Pinellas County Actual Physical Control DUI, we are lawyers who can help. We will want to discuss the facts of your case and closely review the allegations in the narrative police report. Your case could be a good candidate for a motion to dismiss the DUI charge. In the alternative, perhaps it might be appropriate to prepare affidavits to support your contention that you never intended to drive the vehicle.
We need to direct the prosecutor’s focus on the fact that there was no accident or injury in your case. Further, that by not driving, you intended to do “the right thing.” Our team of former state prosecutors can closely examine all aspects of your case and can consider any available defenses. It could be your objective to have us aggressively litigate your case in the courtroom. In the alternative, you may seek our services for the purpose of negotiating an amenable plea bargain. Either way, the long term ramifications of a DUI conviction makes it critical that you retain a law firm for whom you have the highest degree of trust and confidence.
Call us to schedule a free consultation: (727) 578-0303
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Free Consultation with an Actual Physical Control DUI Attorney
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