Understanding § 316.193 and How You Can Be Charged Without Driving
You don't need to be driving down the road to be arrested for DUI in Florida. In fact, you don't even have to be moving. Under Florida Statutes § 316.193, being in "actual physical control" of a vehicle while impaired is enough to result in a DUI arrest and conviction.
This legal concept catches a lot of people off guard — especially those who were asleep in a parked car, sitting in the driver's seat with the engine off, or even pulled over on the side of the road. But Florida law is clear: if you're impaired and in actual physical control of a vehicle, you can be charged with DUI.
Let's break down exactly what "actual physical control" means, how it's interpreted by Florida courts, and what to do if you're facing charges based on this theory.
The Language of Florida Statutes § 316.193
Here's what the statute says:
"A person is guilty of the offense of driving under the influence... if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance... or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired; or
(b) The person has a blood-alcohol level of 0.08 or more grams..."
So, under Florida law, DUI applies if you are either:
- Driving, or
- In actual physical control of the vehicle while impaired.
That second part is where many DUI cases begin — and where many legal fights happen.
What Does "Actual Physical Control" Mean?
In Florida, "actual physical control" means the person has the ability to operate or direct the vehicle — even if they're not driving it at the time.
Courts have said a person is in actual physical control if they are:
- Inside the vehicle, and
- In possession of the keys, and
- Able to operate the vehicle (even if the vehicle is off).
That means if you're sitting in the driver's seat with the keys in your pocket — even parked — you could still be charged with DUI if the officer believes you're impaired.
Common Real-World Scenarios
Here are examples where Florida courts have upheld DUI charges based on actual physical control:
Asleep in the Driver's Seat with Engine Off:
You pull over to sleep it off after drinking. The car is off, but you're in the driver's seat with the keys in the ignition. Police knock on the window and smell alcohol. You're arrested and charged.
Pulled Over With Car Running:
You park on the shoulder with the engine running and the lights on. You were trying to "sober up" but never drove while drunk. You're still considered in control of the vehicle.
Keys on the Floor or in Your Lap:
Even if the keys aren't in the ignition, courts may consider you in control if the keys are nearby and you're in the front seat.
Driver Outside But Has Keys and Admits to Driving:
Even being outside the car can lead to DUI charges if you're in possession of the keys and admit to having just driven moments before the stop.
Legal Issues and Defenses
Because "actual physical control" is fact-based, your lawyer has room to challenge it depending on the circumstances. Some strong defense angles include:
- You were not in the driver's seat
- The vehicle was inoperable (flat tire, mechanical issue, etc.)
- You had no intent to drive — for example, if you were sleeping in the back seat
- The keys were not accessible
- You were using the vehicle as a shelter, not for transportation
These defenses can be powerful if presented correctly — and they've been successful in Florida courtrooms.
Why Police Use This Charge So Often
From a law enforcement perspective, "actual physical control" is used to prevent harm before it happens. If you're found impaired inside a vehicle, police often assume you either just drove or were about to drive — even if there's no evidence of movement. That assumption alone can result in your arrest and a full DUI prosecution.
It's also a fallback charge when officers don't actually witness someone driving but want to stop them from possibly getting on the road while impaired.
What To Do If You're Arrested for DUI Without Driving
If you're charged based on "actual physical control," here's what to do:
- Do not argue with the officer — you can't talk your way out of it.
- Do not admit to having driven or being about to drive.
- Don't try to explain why you were in the car. Even innocent explanations can be twisted.
- Ask to speak with a criminal defense lawyer immediately.
These cases are highly fact-specific, and the officer's report, bodycam footage, and vehicle location all matter. A private DUI lawyer will review every detail to see whether the state can prove you were truly "in control."
Charges and Penalties You May Face
Even if you weren't driving, if convicted under § 316.193, you could still face the full weight of DUI penalties:
- First DUI Offense:
- Up to 6 months in jail
- Up to $1,000 in fines
- License suspension (minimum 6 months)
- DUI school and community service
- Possible ignition interlock device
- With aggravating factors (minor in the vehicle, BAC ≥ 0.15, property damage), the penalties are higher — including mandatory ignition interlock and longer suspensions.
- Second or third offenses increase jail time, fines, and can lead to felony DUI charges under § 316.193(2)(b).
Even a misdemeanor DUI conviction creates a permanent criminal record in Florida — one that can never be sealed or expunged.
Why Hiring a Private DUI Defense Lawyer Is Critical
"Actual physical control" cases are highly defensible — but only if you have a lawyer who knows how to handle them. These cases require:
- Reviewing police reports for errors or inconsistent statements
- Analyzing video footage from the scene
- Showing you had no intent or ability to drive
- Filing motions to suppress based on unlawful detention or arrest
- Cross-examining the officer's assumptions in court
As a private DUI defense attorney, I don't just look at whether you were impaired — I focus on whether the state can actually prove you were in physical control. That's often where their case falls apart.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
You don't have to be driving to be arrested for DUI in Florida. But just because you were in a parked car doesn't mean you're guilty. "Actual physical control" is a gray area of Florida DUI law — and with the right defense, you may be able to avoid conviction entirely.
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.