GREENWOOD, Fla.(dothaneagle.com) – After falling asleep at the wheel with a beer can in her hand, a Greenwood, Florida woman almost rolled her truck into a ditch, Jackson County Sherriff’s Office said. Erica Nicole Cobb, 35, was later charged with a DUI (alcohol). Early Sunday morning, officers were dispatched to a suspicious vehicle parked in the middle of Highway 71 in the Greenwood area. Upon arrival, deputies found a Dodge pickup truck roadway with the engine running. Read More.
To convict you of DUI, the state must prove you were in actual physical control. You do not have to be driving the car to be charged with DUI; however, being asleep in a parked vehicle can be a basis for a DUI prosecution.
What are the elements of an Actual Physical Control case?
- Actual, or constructive possession over the key to the vehicle.
- Driver is in the driver’s seat, passenger seat or passenger compartment.
- Evidence that the vehicle was operable.
Proof the vehicle can operate without a “key” is more common these days with fobs that don’t require a keyhole and with the advent of electric/hybrid cars. Having ready and apparent ability to move the car is the important factor for “actual” possession to be proven. There have been cases where the arrestee is in the back seat of the car, but had the keys in his pocket, and was convicted of DUI. In order for evidence that the car was “operable,” the vehicle has to be capable of self-propelled mobility. Running out of gas isn’t a defense. Not having any tires or serious mechanical defect could be a defense to the charge. In some states (not Florida) you would need a certificate from the state that the car was a junker.
In Ms. Cobb’s case, while she may have been parked and asleep, she was parked in the middle of a highway. The State would likely argue that Ms. Cobb drove to that location in an intoxicated state and the vehicle wasn’t lawfully parked.
About the Author: Licensed to practice since 1982, Jonathan Blecher has defended over 5000 DUI and suspended driver license cases. A former Assistant State Attorney under Janet Reno, Jonathan later developed his interest and skills in DUI defense working under DUI legend Richard Essen, a founding member of the National College for DUI Defense. A member of the College himself, Jonathan has lectured on DUI topics at seminars, civic and business groups, as well as at the Miami-Dade County Police academy in courtroom procedure for police cadets. Jonathan is AV-Rated by Martindale-Hubbell and is authorized to appear before the Supreme Court of the United States, the Fifth and Eleventh United States Courts of Appeal, the U.S. District Court for Southern and Middle Districts of Florida, as well as the U.S. District Court for the Eastern District of Michigan. Mr. Blecher can be reached at www.duilawdefense.com, jonathan@blecherlaw.com, and 305.321.3237.
