Florida DUI and the Element of Actual Physical Control
Most people arrested for DUI/DWI in St. Augustine are stopped while driving a vehicle. However, in some cases, the vehicle may already be stopped when the officer arrives on the scene. If the vehicle engine is not on and running, the officer will have to prove that the defendant had actual physical control of the vehicle. A critical issue will become the location of the keys to the vehicle. Keys in the ignition are the typical example, or even the key FOB was in the drivers pocket and it is a push to start vehicle, in an actual physical control DUI case.
The police must observe every element of DUI in their presence for it to a lawful arrest under section 901.15 (“When arrest by officer without warrant is lawful.”), Florida Statutes (2023). However, that is not always the case. There are DUI investigations where the suspect driver is not behind the wheel with the keys in the ignition.
Attorney Travis Mydock is a Board-Certified Specialist in Criminal Trial Law by The Florida Bar. His practice is limited to DUI and criminal defense.
Mydock Law is a boutique criminal defense law firm located in St. Augustine, Florida. The firm frequently defends DUI cases in the Seventh Judicial Circuit: Flagler, Putnam, St. Johns, and Volusia counties; the Fourth Judicial Circuit: Clay and Duval counties; and the Eighth Judicial Circuit: Alachua, Bradford, and Baker counties.
Attorney Mydock has vast experience in all types of Florida DUI/DWI cases and related issues. Call Mydock Law at (904) 864-3002 for a free consultation in all DUI cases.
TWO ELEMENTS OF DRIVING UNDER THE INFLUENCE
To prove the crime of Driving Under the Influence, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) drove [or was in actual physical control of] a vehicle.
2. While driving [or in actual physical control of] the vehicle, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
“Actual physical control” of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
SAMPLE DUI MOTION TO SUPPRESS FOR NO ACTUAL PHYSICAL CONTROL
If a witness has the keys, the officer likely did not witness every element of the DUI in their presence. Below is a sample motion to invalidate the administrative driver license suspension for refusal to submit to a breath alcohol test on the basis that the officer did not observe the defendant in actual physical control when another person had possession of the keys.
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STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS
In Re: DRIVER/PETITIONER
DL NO.
UTC #
PETITIONER’S MOTION TO INVALIDATE
The Petitioner, DEFENDANT, through the undersigned attorney, pursuant to Section 322.2615, Florida Statutes (2023), and Rule 15A-6.010, Florida Administrative Code, hereby moves to invalidate the driver license suspension in this case.
AS GOOD CAUSE, Petitioner would show:
- Petitioner was arrested for DUI refusal by Deputy on 01/01/2024. A witness had possession of the keys when the Deputy arrived on scene. Petitioner was behind the wheel and the vehicle was off.
- Petitioner moves to invalidate the driver license suspension for refusal to submit to a breath test on the grounds that the arrest was unlawful.
- All elements of the misdemeanor crime of driving under the influence must be committed in the presence of the officer. See section 901.15, Florida Statutes (2023).
- Deputy did not observe Defendant in actual physical control of the vehicle. The vehicle was off and the keys were not in the vehicle when Deputy encountered Defendant.
- Section 901.15, Florida Statutes (2023), does not authorize a warrantless DUI arrest based on probable cause.
- The officer must witness every element of the offense. Florida law is clear that the observations of a private citizen cannot be considered to equate to personal knowledge and observation of the officer, as that would abrogate the statutory requirement that the misdemeanor violated be committed in the presence of the officer. See Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997).
- The Department can only predicate a license suspension on a failure to submit to a breath test if the refusal is incident to a lawful arrest. Dept. of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1073 (Fla. 2011).
- This case is similar to Maher v. Dept. of Highway Safety and Motor Vehicle, 13 Fla. L. Weekly Supp. 121a (Fla. 7th Cir. Ct., Nov. 18, 2005). In the Maher case, a private citizen advised the arresting officer that he, the private citizen, had discovered the petitioner slumped over the truck’s steering wheel, with the engine running, and he had turned the engine off, removed the keys, and placed them on the hood. The officer never observed the petitioner in actual physical control, and therefore the circuit court quashed the administrative suspension.
- See also Williams v. Dept. of Highway Safety and Motor Vehicles, 31 Fla. L. Weekly Supp. 101a (Fla. 7th Cir. Ct., April 21, 2023); State v. McMaster, 28 Fla. L. Weekly Supp. 921a (Fla. Volusia Cty. Ct. Aug. 22, 2019); and State v. Alfson, 21 Fla. L. Weekly Supp. 343a (Fla. Volusia Cty. Ct. Oct. 24, 2013). Further see Jones v. Dept. of Highway and Safety Motor Vehicles, 22 Fla. L. Weekly Supp. 535 (Fla. 18th Cir. Ct. Nov. 25, 2014) (Officers did not have probable cause for actual physical control in their presences where petitioner was in car in a Publix parking lot, but the manager had the car keys when officers arrived).
WHEREFORE, Petitioner moves to invalidate the administrative suspension.
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Attorney for Driving Under the Influence arrest in St. Augustine or St. Johns County
Attorney Travis Mydock is a Board-Certified Specialist in Criminal Trial Law by The Florida Bar. His practice is limited to DUI and criminal defense.
Mydock Law is a boutique criminal defense law firm located in St. Augustine, Florida. The firm frequently defends DUI cases in the Seventh Judicial Circuit: Flagler, Putnam, St. Johns, and Volusia counties; the Fourth Judicial Circuit: Clay and Duval counties; and the Eighth Judicial Circuit: Alachua, Bradford, and Baker counties.
Attorney Mydock has vast experience in all types of Florida DUI/DWI cases and related issues. Mydock Law frequently defends Florida DUI/DWI cases in the following cities:
St. Johns County DUI/DWI
St. Augustine DUI/DWI
Ponte Vedra Beach DUI/DWI
Ponte Vedra DUI/DWI
Julington Creek DUI/DWI
Nocatee DUI/DWI
Silverleaf DUI/DWI
Fruit Cove DUI/DWI
Cresent Beach DUI/DWI
Hastings DUI/DWI
Flagler DUI/DWI
Palm Coast DUI/DWI
Flagler Beach DUI/DWI
Bunnell DUI/DWI
Duval County DUI/DWI
Jacksonville DUI/DWI
Jacksonville Beach DUI/DWI
Clay County DUI/DWI
Green Cove Springs DUI/DWI
Putnam County DUI/DWI
Palatka DUI/DWI
Interlachen DUI/DWI
Volusia County DUI/DWI
Ormond Beach DUI/DWI
Daytona Beach DUI/DWI
Bike Week DUI/DWI
Motorcycle DUI/DWI
If you have been arrested for DUI in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation.
RESOURCES
Revised March 26, 2024
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