DUI Lawyers admit that there is little authority as to whether there can be an attempt to commit such offenses; thereby entitling the accused to an attempt instruction. According to William Moore, a long time DUI Attorney in Fort Lauderdale Florida, two judges reached different conclusions on this point. In Morrison v. State, a circuit court sitting in its appellate capacity upheld the denial of an instruction on attempted DUI. The court agreed with the trial judge that such a charge is not a necessarily included offense. Additionally, the court ruled that the defendant was not entitled to such an instruction because there was no evidence supporting a finding of guilt on an attempt charge. The defendant was alone and asleep in his vehicle with the keys in his pocket. In Morrison, the court specifically rejected the suggestion that DUI includes an intent element.
Broward County DUI Lawyer on Issue of Attempt:
On the other hand, in State v. Power, the trial judge granted a motion for new trial because the defendant was entitled to an instruction on attempted DUI. The court said that such an offense occurs, "where an intoxicated person sits behind the wheel (the overt act), or for that matter, merely opens the car door, with the intent to drive the vehicle." (emphasis by the court) The court went on to say: "At that point in time the reason the crime of D.U.I. has not been committed is because the key has not yet been produced. It is only when that intoxicated person uses the key that the crime of D.U.I. is complete."
Broward County DUI Lawyer William points out that in Mollenberg v. State, the court partially resolved this issue. The court concluded that one is not entitled to an instruction on attempted DUI where the evidence is undisputed that the person was driving, but conflicts as to whether he was impaired. The court clearly rejected the argument that attempt applies to the impairment element of DUI. But the court declined to decide whether the crime of attempt ever applies to DUI in Florida.