A person is guilty of driving under the influence if the person is driving or in actual physical control of a vehicle. See Fla. Stat. § 316.193(1). When there is insufficient evidence for the State 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. See Lamore v. State, 983 So. 2d 665 (Fla. DCA 5th 2008). Hence, a conviction for DUI will be reversed where the State fails to establish that the accused was driving the vehicle or was in control of the vehicle at the time of his or her arrest. See Lukas v. State, 627 So. 2d. 123 (Fla. 5th DCA 1993).
Actual physical control is defined by some courts as a situation where a driver “could have any time started the automobile and driven away”, factors such as the location of the ignition keys are important in this determination. See Griffin v. State, 457 So. 2d 1070, 1072 (Fla. 2nd DCA 1984).
A defendant may be deemed to have been in actual physical control of a vehicle that was inoperable at the time it was found by the police if there is sufficient evidence for the jury to find that the defendant was driving under the influence when the vehicle became inoperable. State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989).
The "reasonably capable of being rendered operable standard" is applied when a person is charged with driving under the influence and claims either that the vehicle was not operational or that he was not in actual physical control of the vehicle. Even where a person is only sitting in or on a motionless vehicle, so long as the State can prove that person had the capability to operate it that person will be convicted of a DUI. See Fl. DUI Handbook § 1.3.
Around 3 in the morning, the police found defendant asleep in the front seat of his car. Id. at 604. The car was parked in a parking lot, the engine not running, the lights on, and the key in the ignition in the off position. Id. at 605. The officer placed the defendant under arrest for violating Fl. Stat. § 316.193(1), which provides that a person is guilty of driving under the influence “if such person is . . . in actual physical control of a vehicle…” Id. The court sought to “determine whether, from the evidence that the keys were in the ignition of the vehicle in which defendant was found intoxicated and asleep, lying down on the front seat, a reasonable inference can be drawn that defendant, while intoxicated, placed the keys in the ignition and thus was at least at that moment in actual physical control of the vehicle while intoxicated.” Id. at 606-07. The court held that since a person who has placed keys in the ignition of a vehicle may be as much in actual physical control of the vehicle as a person seated behind the wheel of the vehicle, such an inference can be drawn. Id. at 607.
Fielselman v. State, 537 So. 2d 603 (Fla. 3rd DCA 1988)
Defendant was arrested for a DUI. The State of Florida subsequently filed an Omnibus Motion in Limine to prevent Defendant seeking to present evidence that he did not have the intent to operate a vehicle and therefore did not commit a DUI. However, the court held that "intent to drive" is not necessary to satisfy the "actual physical control" element of driving under the influence, as it is a general intent crime. Therefore, the State could preclude defendant from using intent as a defense. Actual physical control has nothing to do with intent to drive. An individual can receive a DUI without driving or even any desire or intention to drive.
