Not Driving But Charged With A Florida DUI – You Have A Defense

Defenses related to prosecution’s ability to prove the elements of the offense, other than impairment.

To be convicted of a DUI-DWI charge, the State has to prove each of the “elements” of each offense against you beyond a reasonable doubt.

An “element” is an essential part of the offense charged.

For example, “driving” is a common element in most common law DUI-DWI cases, even though Florida law has expanded “driving” by also covering “actual physical control” to cover situations where driving has ceased, but strong evidence exists that the car was recently driven (or is observed with the engine running).

This means, even if the State can prove that you were impaired, they still typically have to prove that you were either “driving,” “operating” or in “actual physical control” of your vehicle at the time of your impairment. Thus, while it is illegal to be driving while impaired, it may not be a crime to be sleeping in the driver’s seat if your car doesn’t move, the engine is not running, and/or the key is not in the ignition

Some Florida courts have ruled that being out of the driver’s seat (sleeping in the rear passenger area) or not having access to the ignition key (possibly locked in the trunk) may show no “actual physical control.”

If your lawyer can show the court that the State cannot prove any one element of a DUI- DWI charge against you, then the entire charge will be defeated. Often, prosecutors are hesitant to reduce or dismiss these cases.

This is why the best DUI-DWI attorneys investigate these cases thoroughly, looking for ways to challenge any significant errors or inconsistencies in the police reports, and otherwise prevent you from being wrongfully convicted. Your attorney will want to consider every detail that you can remember about the entire day leading up to your arrest.