Can I Get a DUI in Florida If I’m Not Actually Driving?

Yes, you can still face arrest for a DUI in Florida even if you’re not actually driving. Most people do not know that you can arrested and charged with DUI for simply being in the driver’s seat while impaired.

Many of my clients are shocked when they get arrested for simply being in the vehicle. Some don’t even have the car running. This is called an APC case, or Actual Physical Control. Yes, it counts just the same as if you were driving. We welcome you to contact our Florida DUI defense attorneys today for a free consultation.

Can I Be Arrested for a DUI in Florida If I’m Not Driving?

Yes, you can get a DUI if you’re not actually driving the vehicle.

First, let’s look at the law:

Florida Statute Section 316.193(1) states:

“A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state.”

Read Related: What Happens During a DUI Traffic Stop in Florida?

What Is the Florida ‘DUI’ Limit?

  • If you have a blood alcohol content (BAC) or breath alcohol content of 0.08% or higher, you are considered under the influence and should not have been driving.
  • You may also be considered under the influence if your ‘normal faculties’ are impaired – even if your BAC is under the limit.
  • For under 21 drivers, the BAC limit is just 0.02%.
  • Commercial drivers of any age have a 0.04% BAC limit.

What is ‘Actual Physical Control’?

Actual physical control means the individual has the ability to drive the vehicle at any moment.

If you’re found to be under the influence of alcohol or drugs while sitting in the driver’s seat, then you may be arrested for a DUI.

This is also true even if the car was turned off but the keys were in your pocket or within reach.

The charges and penalties for a DUI in Florida where you’re not actually driving the vehicle are the same as they are if you were.

Arrest for Having Keys in the Ignition

If law enforcement finds you under the influence of alcohol or drugs while sitting in the vehicle with the car in the ignition, you can be charged for a DUI – even if you had no intention of driving the vehicle. For example, you may put the keys in the ignition to turn the AC on, law enforcement could still arrest you.

DUI Arrest for Sitting in a Vehicle

You can also get a DUI if you’re sitting in the vehicle with the keys not in the ignition. For example, an officer could arrest you for sitting in your car with the keys within reach. The theory is that you could start the car up and drive at any moment.

Can I Get a DUI if I’m Sleeping in My Car?

Yes. You can also get a DUI for sleeping in your car in Florida if you’re found to be under the influence.

Law enforcement can perceive this as actual physical control if you’re in the driver’s seat or have access to your keys.

Can I ‘Sober Up’ in My Car?

No. You can still get a DUI even if you say you’re ‘sobering up’.

It isn’t worth the risk of arrest by sobering up in your car. The wisest thing is not to enter your car at all while drunk.

Can a Passenger Get a DUI in Florida?

Drunk passengers cannot ordinarily receive a DUI charge in Florida. However, if the passenger touches the wheel, they could be perceived as being in ‘actual physical control’, so they could be arrested for a DUI.

There are also other situations where drunk passengers can face arrest for other offenses:

Open Container Laws in Florida

Florida Statute 316.1936 states,

  • “It is unlawful (…) for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.”
  • “It is unlawful (…) for any person to possess an open container of alcohol while seated in or on a motor vehicle that is parked or stopped within a road.”

That means you cannot drive or ride as a passenger with an open container of alcohol inside a vehicle, even if it’s parked on a roadway, parking lot or curb.

If you’re a driver or passenger with an open alcoholic beverage in Florida, you can be charged for an open container offense. While not as severe as DUI charges, they are still misdemeanors in Florida.

You can also be charged even if you are not the one using or holding the open container and face.

DUI Penalties in Florida

DUI penalties in Florida are:

Penalties for a First-Time DUI Offense

  • Maximum of 6 to 9 months in jail
  • Between $983 in fines
  • License suspension of up to 1 year
  • A mandatory interlock ignition device for BAC above .15
  • An ignition interlock breathalyzer device is installed on your motor vehicle.

Second and Third-Time DUI offenses

Second convictions that occur within 5 years of the first, or third convictions within 10 years of the previous result in increased penalties.

  • Up to 1 year in jail
  • Up to $5,000 in fines
  • License suspension for up to 10 years

How to Defend a DUI in Florida If You Weren’t Driving

You should contact a criminal defense lawyer immediately if you’ve been arrested for a DUI in Florida. Our DUI defense team welcomes you to make a free consultation today. Possible defenses may include:

Proving You Were Not in Actual Control of the Vehicle

If the keys were not in your possession, then you could argue you were not in actual physical control of the vehicle. For example, you may have sat in your car intoxicated while a friend was outside with the keys.

Another example could be that you stayed in the vehicle to protect the car while your friend quickly ran into the store to grab something, while in possession of their car keys.

If the keys were stored safely in the glove compartment, you could also argue you were showing intent not to drive the car.

You Were Protecting Yourself

If there is a storm or heat wave, you may have taken shelter in your vehicle. Women may also argue that they were taking shelter from threatening men.

You Were on Private Property

If you were parked on your own property, then you likely had no intention to drive the vehicle. Perhaps you were cleaning your vehicle or looking for something while also in possession of your keys.

Examples of DUIs Without Driving the Vehicle

  • You leave a bar intoxicated and take a nap in your car to sober up. Your keys were in the ignition for the AC. A police officer walks past and sees you’re intoxicated and in actual physical control of the vehicle, so you are arrested for a DUI.
  • You leave a party drunk and sit in the passenger seat of your car while you wait for your sober friend to arrive and drive you home. An officer detects the smell of alcohol on your breath and asks you to take a breathalyzer test. Although you had no driving intentions, the police arrest you for a DUI as you were in the car alone.
  • You drive home after drinking wine at a restaurant. You pull over after 5 minutes because you realize you’re drunk driving, and it’s dangerous. An officer pulls up to you and detects you’re drunk. They ask you to perform a breathalyzer test and you blow over the limit. Although you were not driving at this moment, you’re arrested for being in actual physical control of the vehicle while intoxicated.

Contact a DUI Defense Attorney in Florida

If you’ve been arrested for a DUI in Florida without actually driving, then our DUI defense lawyers can help. Our Florida criminal defense attorneys can fight on your behalf to help you avoid jail time and avoid a criminal record.

Free Consultations

Our criminal defense attorneys in Pinellas County at Battaglia, Ross, Dicus & McQuaid, P.A., are part of one of Tampa Bay’s most prestigious law firms with over 60 years of experience. We have the reputation and connections to make things happen.

Contact us today for a free consultation to get started or CALL (727) 381-2300

Sean McQuaid