In Florida, a person can be arrested for DUI if he/she drives a motor vehicle while impaired from alcohol or drugs. A person can also be arrested for DUI if he/she is not driving if the person is in actual physical control of the vehicle. This has been interpreted to mean being in the driver’s seat with the keys in the ignition or with the keys within arm’s reach. Another issue that arises is whether the vehicle can be operated. If a person is in the driver’s seat of a vehicle with the keys but the engine has been removed, obviously the vehicle cannot be operated and a DUI arrest would not stand. However, if a person is in a vehicle with the keys and the vehicle is out of gas, Florida courts have upheld DUI arrests because a person could easily go and get some gas and the vehicle would be readily operable.
In a recent DUI case near Jacksonville, Florida, a defendant was arrested for DUI and testified that he missed a turn and tried to make a u-turn on his motorcycle. While doing so, he drove his motorcycle into a ditch filled with water. His motorcycle shut off, and he tried to remove it from the ditch without success. He walked to a nearby bar to get a friend to help him retrieve the motorcycle. He also testified that while waiting for the friend, he had a few drinks at the bar. After the drinks, the defendant and his friend went to the ditch and were pulling the motorcycle out when a police officer arrived. The police officer decided that the defendant was impaired from alcohol and arrested the defendant for DUI.
The criminal defense lawyer ultimately had the DUI case thrown out. The state could not prove defendant was ever driving or in actual physical control of the motorcycle. Arguably a person could be in actual physical control of a motorcycle if he is pulling it out of a ditch and he has the keys. However, in this case, the motorcycle was inoperable because it was driven into a ditch filled with water. As a result, the motorcycle could not be started and could not be operated.