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West Palm Beach Criminal Lawyer Blog


Power Nap or DUI?


If you are intoxicated and asleep at the wheel of a non-moving car, you can be charged with DUI (even if the ignition is off)!  What you need to know about drinking and driving in Florida.

Have you ever been in a situation where you’ve had more to drink than you planned, and need a safe way to get home? Perhaps you, like many people, believe that if you’ve had one too many to drink, it is safer to simply sit in your car in the parking lot where you’d been drinking — rather than drive while intoxicated.  In the eyes of the law, though, in this situation you could be found to be in “actual physical control” of a motor vehicle while intoxicated, which is a crime in the state of Florida.

In such situations, you should know that the state must prove that either you were driving or that you were in actual physical control of a motor vehicle in order for you to be charged with DUI. However, the law in these cases has broad latitude. The law has construed actual physical control to mean many things. Following are some examples:

  • Jane is changing her tire on the side of the road. A police officer pulls up to do a “safety check” and determines in his mind that Jane is impaired.  Based upon the facts, Jane could be charged with DUI.
  • Gary decides that it would be smart not to drive home after drinking too much, and goes to sleep in his car at the saloon where he’d been drinking. The keys are in his front pocket and he is sitting in the driver seat. Gary, also, could be charged with DUI.

These are just two examples of what can be construed as actual physical control of a motor vehicle in the eyes of Florida law enforcement officers.

Obviously, the best practice is to not drink and drive at all – and this includes having even one drink at a social gathering. Remember that DUI is the only charge you can receive based upon the opinion of the police officer on the side of the road. A police officer cannot arrest you because he believes that you robbed a bank or believes that you stole a car, but you can be arrested for this offense based upon the opinion of one officer.

If you find that you are in a situation where you should not drive, the best practice is to sit in the backseat with the keys in the glove box. This puts you in a much better position of not being charged due to actual physical control. Of course, the better practice is to not be in the car at all after drinking.

If you find yourself charged with DUI, your best bet would be to contact an experienced criminal defense attorney with experience in DUI cases who can help you prepare your strongest defense. Remember that simply “not knowing” that sleeping in you car after drinking is a crime is not a defense in court.