AV Preeminent
The Florida Bar

DUI Physical Control

Defending clients who have been charged with DUI where they were resting in a stationary vehicle involves attacking the prosecutors assertion that the Defendant had “Actual Physical Control” of the vehicle.

What Is Actual Physical Control?

Evaluation of the sufficiency of the evidence to establish “actual physical control” requires consideration of the totality of the circumstances. Prosecutors will tend to rely on one or all of the following fact patterns in an attempt to prove their case:

(1) Defendant’s possession of a key to the vehicle or proof that it could be operated without the key,

(2) The presence of the defendant in the driver’s seat, and/or

(3) Proof that the vehicle was operable to some extent.

The courts have consistently stressed that the second of these factors, presence behind the wheel, is a strong indicator of actual physical control. Even where a defendant is not behind the wheel (such as in the back seat) actual physical control may still be proven as matter of law. The court must consider all the other circumstances including:

Location of Keys

One of the most important of these circumstances to your Fort Lauderdale DUI lawyer will be the first factor, the actual or constructive presence of the keys or means of operating the vehicle. That has been the focus of several cases.

In one such case, a juvenile driver was lying down, asleep in the front seat of a car parked in a parking lot. The engine was off and cold, but some of the lights were on. The gear shift was in the parked position. These facts did not create a jury question as to whether there was actual physical control, but the presence of the key in the ignition switch, even in the off position, cured that defect. The court observed that the result might have been the same even if the defendant had been in the back seat.

The presence of the key is a particularly important factor in cases not involving accidents, and it is commonly in the clear possession of the accused. Thus, the evidence was sufficient in Baltrus v. State, where the defendant was slumped behind the wheel of a parked car with the keys in his hand. The result was the same in Griffin v. State, where the accused was asleep in the driver’s seat of a stopped car facing the wrong way in a traffic lane. In that case, the engine was off, the lights were on, the defendant had his foot on the brake pedal, and the keys were in the ignition.

However, the driver does not always have the keys in his or her actual possession or in the ignition. If the defendant is the only one in the vehicle and the keys are “in the ignition or near enough for [the defendant] to use them to start the vehicle and drive away” the evidence of actual physical control is sufficient. That was the situation where the defendant was found in a car stopped in the middle of an interstate exit ramp

The keys were not in the ignition switch but were in the car.

The court found that there was constructive possession of the keys, allowing an inference that the defendant could have started the car and driven away at any time. The court took a different position where the defendant was asleep behind the wheel of a car with the engine off, and a thoughtful citizen had left the key on the hood. The court said, “No case has stretched the concept of physical control to encompass a situation where the vehicle is not running and the keys are not even inside the vehicle.”

As the foregoing authorities suggest, constructive possession may be an element in DUI cases. A person is in constructive possession of an object if he or she has knowledge of its presence and nature, and the ability to maintain dominion and control over the object. These elements may be inferred from exclusive possession of a car containing the object. If, however, the vehicle is jointly occupied, the State can prove constructive possession only through evidence of actual knowledge or incriminating statements or facts. Under such circumstances, Fort Lauderdale DUI lawyers argue that mere proximity to the object is insufficient to establish dominion and control.

The application of these principles to possession of the key in a DUI case suggests that, regardless of the key’s location in or around the car, it will usually be for the jury to decide whether the accused had the ability to control the vehicle. That decision might be aided by the standard jury instructions on constructive possession in drug offenses.

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