63 So. 3d 75
Fla. Dist. Ct. App.2011Background
- Fitzgerald was found intoxicated and seated in the driver's seat of a parked Pontiac; the engine was not running and lights were on.
- The officer observed Fitzgerald with keys in her right hand and she produced them when asked.
- A male passenger sat in the car, with legs hanging out of the passenger door; the driver’s side door was open.
- Fitzgerald submitted to breath tests showing BAC levels of .201 and .218; she was charged with DUI under 316.193(2)(b)(1) due to prior DUIs.
- The circuit court dismissed the case, ruling that the State could not prove actual physical control; the State appealed.
- The Second District Court of Appeal held that actual physical control can be shown by evidence Fitzgerald was in the vehicle with the capability to operate it, even if she was not driving at that moment; the case was reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether actual physical control requires capability to operate, not actual driving | State contends Fitzgerald had the ability to start and drive the car | Fitzgerald argues she was not operating the vehicle and the State cannot prove capability | State may prove with capability evidence; reversed and remanded |
Key Cases Cited
- Griffin v. State, 457 So.2d 1070 (Fla. 2d DCA 1984) (supports the notion of actual physical control to deter DUI risk)
- Prue v. State, 701 So.2d 637 (Fla. 2d DCA 1997) (competent evidence showed actual physical control when keys were usable to start the vehicle)
- State v. James, 928 So.2d 1269 (Fla. 2d DCA 2006) (reaffirms prima facie case standard on motion to dismiss)
- Jones v. State, 510 So.2d 1147 (Fla. 1st DCA 1987) (Alabama/Florida cross-reference on totality of circumstances in actual physical control)
- Baltrus v. State, 571 So.2d 75 (Fla. 4th DCA 1990) (evidence where keys were in hand supports proof against motion to dismiss)
- Fieselman v. State, 537 So.2d 603 (Fla. 3d DCA 1988) (keys in ignition and operability affect actual physical control)
- Lamore v. State, 983 So.2d 665 (Fla. 5th DCA 2008) (offense is one of general intent; placing oneself behind the wheel is a danger to public)