Can I get a DUI while sitting in a parked car in Florida?

Many people who call after a DUI arrest say the same thing: "I wasn't even driving." They were asleep in the driver's seat, waiting for a ride, or running the air conditioning in a parking lot. Florida's DUI statute was written with that situation in mind. This page explains the words the law uses, what the jury is told those words mean, and which facts usually decide whether the charge fits. For how a DUI case is defended from start to finish, see our main DUI defense page.

What does "actual physical control" mean in Florida?

Section 316.193(1) makes it a crime for a person to be "driving or in actual physical control of a vehicle within this state" while impaired by alcohol or drugs, or with a blood or breath alcohol level of 0.08 or more. The statute itself does not define "actual physical control." The definition the jury hears comes from the Florida Standard Jury Instructions in Criminal Cases, which Florida Rule of Criminal Procedure 3.390(a) says judges may use and which appear on The Florida Bar's website. Instruction 28.1, in the edition updated October 9, 2026, says:

"Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time."

So the State does not have to prove the car moved. It has to prove, beyond a reasonable doubt, that the person was in or on the vehicle, that the person had the capability to operate it, and that the person was impaired or at 0.08 or more at that time. Each of those parts can be disputed.

Where else does the law use the same words?

"Actual physical control" runs through every part of a Florida DUI case, not only the charge. The implied consent law applies to a person arrested for an offense committed "while the person was driving or was in actual physical control of a motor vehicle" (s. 316.1932(1)(a)1.a.). The license suspension at the arrest covers a person "who is driving or in actual physical control of a motor vehicle" with 0.08 or more, or who refused a test (s. 322.2615(1)(a)). The refusal crime requires probable cause that the person was "driving or in actual physical control" (s. 316.1939(1)(a)). And at a license review, the hearing officer decides whether the officer had probable cause to believe the person "was driving or in actual physical control of a motor vehicle in this state" while under the influence (s. 322.2615(7)(a)1.). How that review works is explained in the DUI formal review hearing.

Because the same words appear in each step, a weak actual physical control case can matter in the license review, in a refusal charge and in the DUI charge at the same time.

How does a parked-car DUI case unfold here, step by step?

1. The approach. An officer sees a parked car with someone inside, often in a parking lot, at a gas station, or on the shoulder. Florida's stop and frisk law allows a temporary detention when circumstances reasonably indicate a crime, for no longer than reasonably necessary (s. 901.151(2), (3)). Your rights at that point are covered in your rights during a police stop in Florida.
2. Observations. The report usually records where the person was sitting, where the keys were, whether the engine, lights or radio were on, whether the car was in gear, and how the person looked and spoke.
3. Roadside exercises. The officer may ask for field sobriety exercises. What the statutes say about them is on our page do I have to do field sobriety tests in Florida.
4. Arrest and testing. After a lawful arrest, the officer asks for a breath or urine test under the implied consent law and gives the warnings about the 1-year suspension and the misdemeanor for refusing (s. 316.1932(1)(a)).
5. The license. The officer takes the license, issues a notice of suspension and, if the person is otherwise eligible, a 10-day temporary permit (s. 322.2615(1)(a)). The 10 days to request a review start on the notice date, as explained in keeping your license within 10 days of a DUI arrest.
6. The court case. The DUI is filed in county court where the car was. In Palm Beach County, the Fifteenth Judicial Circuit's Administrative Order 4.603 splits county criminal cases into four regions, with the Southern Region (Boca Raton, Delray Beach, Boynton Beach and nearby towns) heard at the South County Courthouse in Delray Beach and the Central Region at the main courthouse in West Palm Beach. Broward's county criminal judges sit at the Central Courthouse in Fort Lauderdale and at satellite courthouses in Hollywood, Plantation and Deerfield Beach, but Broward DUI cases are filed at the Central Courthouse under the Seventeenth Circuit's Administrative Order 2021-30-CO (Amendment 2); Miami-Dade's County Court Criminal Division hears DUI cases; Martin County cases are heard in Stuart. The local courts and jail are described on our Broward County page and the Palm Beach County page.
7. Motions and trial. Whether the facts meet the definition is usually argued in pretrial motions and, if the case goes that far, decided by a jury of six (s. 913.10).

The parts of the definition, and the facts that go with each

What about the keys, the engine and where I was parked?

People ask about these three facts more than any others. The official text does not list them. Neither section 316.193 nor instruction 28.1 says that keys in a pocket, a running engine, or a parking space decides the case. What the instruction does say is that the State must prove the person was in or on the vehicle and had "the capability to operate" it. Keys, the engine and the location are facts the jury weighs against those words, along with everything else on the video and in the report.

Location deserves a note of its own. Section 316.193(1) speaks of a vehicle "within this state," and does not mention a road. The chapter's general definition of "driver" in section 316.003(21) refers to a person who drives or is in actual physical control of a vehicle "on a highway." How those words apply to a private parking lot or a driveway is a question for a lawyer to answer after reading the facts and the appellate opinions that apply, not something to assume.

What changes the answer?

• Whether the car could run. Instruction 28.1 makes an inoperable vehicle a defense, but "it is not a defense if the defendant was driving under the influence before the vehicle became inoperable." When the car stopped working matters.
• Evidence of earlier driving. If the State can show the person drove there while impaired, it may charge driving, not only actual physical control. A warm engine, a crash, or a witness can change the theory.
• Timing of the test. The breath or blood level that counts is the level while driving or in actual physical control (s. 316.193(1)(b), (c)). A long gap between parking and testing is a fact to examine.
• A crash. Damage or injury caused by operating the vehicle raises the charge (s. 316.193(3)). See how damage or injury changes a DUI charge.
• A refusal. A refused breath or urine test after a lawful arrest is a separate misdemeanor, and its own probable cause element uses the same "driving or in actual physical control" words (s. 316.1939(1)(a)).
• The stop itself. Whether the officer's approach became a detention, and whether that detention was lawful, can be challenged under Rule 3.190(g). See whether evidence can be thrown out in a Florida DUI case.

A worked example

For example, picture a hypothetical man who leaves a restaurant in Delray Beach, decides he should not drive, and waits in the driver's seat for a ride with the engine running for the air conditioning. An officer checking the lot finds him asleep, wakes him, and asks for roadside exercises. He is arrested and blows over 0.08. The officer's affidavit says he was in the driver's seat with the engine on. On the license side, he has 10 days to request a review, where the hearing officer decides probable cause and the breath result. On the criminal side, at the South County Courthouse, the questions are whether he was in the vehicle with the capability to operate it, and whether the breath result reflects his level at that time. Had the car been out of gas and unable to move, the defense of inoperability in instruction 28.1 would be part of the discussion, along with when the car stopped working. The person and facts are invented to show how the definition applies; they are not a client's case, and no outcome is implied.

Common mistakes people make

• Believing that "I wasn't driving" ends the case. The statute covers actual physical control.
• Explaining to the officer at length why you were in the car; statements end up in the report.
• Letting the 10-day license deadline pass because the arrest "doesn't count." The suspension works the same way.
• Not saving proof of a ride request, a receipt, or a call, which can show timing.
• Throwing away repair records if the car was not running.
• Assuming a parking lot is outside the DUI law without having a lawyer review the facts.

What to do this week

1. Find the notice of suspension and count 10 days from its date.
2. Write down exactly where you were sitting, where the keys were, and whether the engine, lights or radio were on.
3. Save screenshots of any ride request, call log or text showing your plans and the times.
4. Keep any repair or towing records if the car was not working.
5. List anyone who saw you before the officer arrived.
6. Read what happens after a DUI arrest in Florida and bring your notes to a lawyer.

Frequently asked questions

Is a parked-car DUI a lesser charge?

No. Actual physical control is part of the same offense in section 316.193(1), and a conviction carries the same penalty ranges as a driving case. Those ranges are listed in Florida DUI penalties.

Does it matter if I was in the back seat?

Instruction 28.1 asks whether the person was physically in or on the vehicle and had the capability to operate it. Where in the car the person was, and where the keys were, are facts that bear on capability.

Can my license be suspended even though the car was parked?

Yes. Section 322.2615(1)(a) applies to a person "driving or in actual physical control" with 0.08 or more, or who refused testing. The review hearing is where the officer's probable cause is tested.

Can a parked-car DUI be reduced?

Some DUI cases resolve with a plea to a lesser charge, but a judge may not accept a plea to a lesser offense when a breath or blood test showed 0.15 or more (s. 316.656(2)(a)). How reductions work is explained in can a DUI be reduced to reckless driving.

Does this apply to a motorcycle or a golf cart?

Instruction 28.1 uses the term "vehicle," and a note in it says the option "on a vehicle" pertains to vehicles such as motorcycles and bicycles. Whether a particular vehicle fits the definition in section 316.003 is a fact-specific question.

What if I was waiting for a ride on purpose?

The statute does not create an exception for good intentions, but the facts that show why and how you were in the car are part of the evidence on capability and timing. Keep anything that shows the ride request.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense in South Florida. He can go through the officer's affidavit, the video and the timeline with you, explain how the actual physical control definition applies to your facts, and handle the license review and the court case in Palm Beach, Broward, Miami-Dade or Martin County. Every case is different, and no result can be promised. The consultation is free, and you can call 24 hours at (561) 362-6677.

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