Circumstantial Evidence Most cases an officer or another witness sees the driving or the defendant's statements prove the driving. When that is not true, however, the circumstantial evidence rule applies. Thus, in Davis v. State, for example, the court acquitted the defendant where the evidence failed to overcome his testimony and other proof that he was only a passenger in the car. The result was the same in Lukas v. State, where there was no direct evidence of driving or actual physical control and the circumstantial evidence failed to exclude every reasonable hypothesis of innocence. The court came to a contrary conclusion in West v. State, a DUI Manslaughter case, based solely on the State's expert testimony.
Circumstantial evidence of driving is often necessary where there is an accident involving only one person or several incapacitated people who are unable to identify the drivers according to William Moore Criminal Defense. Contact our Fort Lauderdale DUI Defense Attorneys to schedule an appointment and request that your case file be reviewed.
Defense lawyers will often attempt to use this to their clients advantage as proof of actual physical control may be unavailable in such cases because the defendant was not seen in control of the car, the vehicle was not reasonably operable, or the offense was one usually requiring proof of driving, such as DUI Manslaughter.
There was such a problem in State v. Boynton, where an officer discovered a car in a ditch. The vehicle had apparently traveled across the road onto the shoulder and partially into the ditch. It had "bottomed out" and the driver had spun the tires in an unsuccessful attempt to move the car. The defendant, who was incoherent and intoxicated, was in the driver's seat. The keys were in the ignition, but the engine was off. There was no evidence that anyone other than the defendant was near or had driven the vehicle. Since the car was inoperable at the time the officer saw it, the State could not prove the charge by proof of actual physical control. Nevertheless, the circumstantial evidence of driving to the scene prior to the crash while impaired was sufficient to submit the case to the jury even though the DUI defense lawyer (according to court documents) achieved a not guilty verdict.
Where the Broward State Attorneys Office relies on circumstantial evidence to prove driving, it might seem that un-contradicted evidence someone other than the defendant drove the vehicle, would compel an acquittal. But there appears to be some conflict on this point. In Chabut v. State, where there was uncontroverted evidence that another person drove the vehicle until it became disabled and then left the defendant in the vehicle, the court held that the trial judge should have granted a motion for judgment of acquittal. But in Finney v. State, the court ruled under similar circumstances that the trial judge correctly denied a motion for judgment of acquittal where the impaired defendant was found in the driver's seat trying to start a car that had struck a tree. Evidence showed that earlier in the evening the defendant left a bar with a man driving her car. The defendant testified that the man drove the car until the crash and ran from the scene, but the trooper said he saw no one running from the scene and the defendant could not remember the man's name.
The evidence is insufficient to prove that the defendant was driving, the State may still make its case by proving that the defendant was in actual physical control of the vehicle. This occurs where the accused is sitting in a motionless vehicle. In such cases, the State must show that the operator was in or on the vehicle and had the capability to operate it. The operator need not be exercising that capability at the time of the offense. It is critical to include the requirement that the defendant was "in or on the vehicle," in jury instructions on actual physical control. And one court ruled that exclusion of this language constitutes fundamental error because it permits the jury to conclude that there was no such requirement.
Broward Criminal Lawyer Moore states that the legislative intent in permitting a conviction based solely on actual physical control, to keep impaired people from ever getting behind the wheel of a car.
According to William Moore Criminal Defense in Fort Lauderdale, the term, "actual physical control," includes the ability to keep a vehicle from starting and the authority to manage it. It includes "the present ability to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment." Thus, the accused may have violated the law even if he or she parks the car or never drives it at all.
The legislature does not violate due process by making it unlawful to be in actual physical control of a vehicle because it "generally constitutes an intentional act." As the court recognized in Lamore:
The Broward State Attorney’s Office maintains that there is a legitimate governmental interest in addressing the drunk driving problem by making it a crime to be in actual physical control of a vehicle while impaired-thereby allowing an intoxicated person to be apprehended before he "strikes;" deterring those who have been drinking from getting into their vehicles, except as passengers; and protecting the public from the danger of an impaired person who places himself behind the wheel and could at any time and with little difficulty start the car and drive away.
The State has relied on proof of actual physical control under different circumstances in both criminal and administrative law cases. Broward Criminal Lawyers were discouraged by the ruling in State v. Favreau, the trial judge concluded that there was sufficient evidence of actual physical control for the case to go to the jury where the defendant arrested for DUI was standing alone in front of one of two vehicles involved in an accident, and when the officer asked for the registration and insurance, the defendant proceeded to get documents from the vehicle. In Anderson v. Dep't. of Highway Safety & Motor Vehicles, the court concluded that there was sufficient evidence of actual physical control where there were no passengers in either of the two vehicles involved in the accident, and the defendant's "forearms were red and bruised apparently from the deployment of the airbag."
Circumstances of the accident alone may be sufficient proof of actual physical control. Thus, in Evans v. Dep't of Highway Safety & Motor Vehicles, the court upheld the hearing officer's finding of probable cause of actual physical control where officers received a report that a white BMW traveling at a high rate of speed, drove off the road through some bushes near a park, and the officers saw the white car in a grassy area of the park. The two driver side tires were flat and there were skid marks indicating the direction in which the defendant was driving. The vehicle had plowed through hedges onto the grass and left deep ruts in the sod. The defendant was seated in the driver's seat with the door closed. Officers found dirt and grass in the car, and saw that the defendant's arms, neck, and face were covered in dirt. No one else was in the car. The court concluded that this circumstantial evidence excluded any reasonable hypothesis that the defendant was not driving or in actual physical control even though there was no proof as to the location of the keys or that the vehicle was operable.
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