People often use driving under the influence (DUI) and driving while intoxicated (DWI) interchangeably, and the key that links both of these is the term “driving.” However, imagine for a moment that you are intoxicated and decide to sit in your vehicle with the engine running because it’s cold and you are hoping to warm up while calling a cab. Could you be arrested for a DWI in Florida just for sitting in your parked car?
The answer is complicated. In this post, the top DWI lawyers in Clearwater with Russo, Pelletier & Sullivan discuss what you need to know about sitting in a parked car while under the influence.
Operating vs. in Actual Physical Control
Although drunk parking is not a charge, you can be convicted of DWI or DUI if you are sitting in your parked vehicle while intoxicated. However, the prosecution still needs to prove the motorist was operating or in actual physical control of a vehicle. This means that both the police and the prosecutor must prove that you were either operating or in actual physical control of the vehicle.
Actual physical control is satisfied if you are found inside the vehicle with the keys readily accessible and the capability to operate your vehicle. It is not necessary that you actually move the vehicle from one point to another. As a result, you can be charged with a DUI if you are found sitting or sleeping in your parked car and your car keys are located by law enforcement within the interior portions of your vehicle.
In determining whether to make an arrest for DUI, the police will consider the “totality of the circumstances” in evaluating whether you were in “actual physical control.” Some factors that law enforcement will consider are::
- The location of the driver: Was the alleged operator in the passenger seat or back seat? Were they in the driver’s seat leaned all the way back? This all matters, and what matters most is the proximity to the ignition.
- The location of the car: Was the car parked in your own driveway or a private parking lot? This is crucial because if the car was parked somewhere more dangerous, like the side of the highway or the middle of the sidewalk, it may be harder to prove that you were not operating the vehicle.
- The location of the keys: If the keys are in the ignition, this makes it more difficult to prove that you were not driving and had no intent to drive. Of course, this can be harder to prove with keyless entry or push-button ignition, but, in general, when the vehicle is running, it may be more difficult to prove your intent.
- Whether the driver was awake or asleep: It’s pretty clear that you must be awake in order to operate a motor vehicle. If you are asleep, you may have an easier time providing that you were not driving at the time and were simply resting in your vehicle.
Defenses for DWI in a Parked Vehicle
The best DWI attorneys in Clearwater have found that “actual physical control” cases tend to be weaker than those where the client was observed by law enforcement driving in a manner consistent with impairment, such as weaving, swerving, failing to maintain a single lane, or driving without headlights. However, whether you feel you were guilty of a DUI or DWI or not, it’s important to contact an attorney as soon as possible to discuss the best defense possible.