"I was only drinking at red lights and stop signs, officer!"

I'm sure you heard that creative defense from the Florida man out in Vero Beach when he was stopped for suspicion of DUI. He was stopped after a woman called police to complain about him continually hitting her bumper with his car while waiting in line at the McDonald's driver thru. The police officer showed up and saw a bottle of Jim Beam in the passenger seat next to Earle Stevens, Jr., the driver. According to the officer, as reported in the Orlando Sentinel, the questioning then went something like this: 

"I asked him if he was drinking in the vehicle and he stated, 'No.' When I asked him where he was drinking he stated, 'Stop signs.' He further explained that he was not drinking while the car was moving and only when he stopped for stop signs and traffic signals." 

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Unfortunately for Mr. Stevens, that defense won't hold up even in Florida. While I'm sure the Florida legislators didn't have Mr. Stevens in mind when they wrote the Florida's DUI law, they certainly considered his defense. The Florida statute, located at section 316.193, states: 

"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...."

While there was a witness to Mr. Stevens' driving (the woman he kept running his car into), assume the officer just showed up and saw him sitting in his car with a bottle of Jim Beam. He didn't see Mr. Stevens driving the car, but only came upon him allegedly under the influence and next to an open bottle. This would be a situation where the prosecutor must show that Mr. Stevens was in or on the car and had the capability (or practical ability) to drive it. 

Using the alleged facts of this story (and not commenting on whether he is guilty or not), Mr. Stevens' defense fails in many ways. First, even though he was drinking while stopped, he was still driving while under the influence. But even if Mr. Stevens didn't talk to the officer and admit to having those drinks while stopped, the officer found him in the vehicle, stopped, apparently under the influence of alcohol and with an open bottle of Jim Beam next to him. While a jury could certainly acquit Mr. Stevens (whether it be a lack of other evidence or based on the inherent jury nullification power), the State could proceed with its case based on those facts. 

In fact, there have been cases where actual physical control was found when: a person was lying down in the front seat of a car parked in the parking lot while the engine was off and cold but had keys in the ignition; or if a person was slumped behind the wheel of a parked car and the keys were in his hand; and where a person was found in a stopped car where the keys were not in the ignition but somewhere else in the passenger compartment. In one situation, though, it was found that while the driver passed out in the car, but with the keys outside on the hood of the car, there was not enough for the case to proceed to the jury.

The idea behind actual physical control, according to the legislature, was to prevent impaired people from getting behind the wheel of a car. Unfortunately, an impaired person trying to do the right thing by not driving at all and sleeping it off in the car could still be arrested and prosecuted for DUI. The argument from the State would presumably be that the driver could still drive away while impaired or even that the driver drove impaired to that location and stopped the car. And typically, in these cases of actual physical control, it will be left for the jury to decide. 


George C. Palaidis is a criminal/DUI defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.