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Florida Standard Jury Instructions in Misdemeanor Cases (1981 ed.), with respect to the offense of being in actual, physical control of a motor vehicle while under the influence of alcohol, states that a defendant must have had the capability and power to dominate, direct or regulate the vehicle, regardless of whether or not he is exercising that capability or power at the time of the alleged offense.
Eurich Griffin was convicted and sentenced by the county court for being in actual, physical control of a motor vehicle while under the influence of alcohol, a violation of Fla. Stat. ch. 316.193(1)(a) (1982). The county court revoked Griffin’s license for six months pursuant to section 322.28, Florida Statutes (1982). Griffin filed a petition seeking a writ of certiorari to review the decision of Florida Circuit Court affirming judgment of county court.
Did the trial court incorrectly instruct the jury on the definition of "actual, physical control"?
The court denied the petition. There was circumstantial evidence that Griffin had actual, physical control of the car. A police officer found Griffin asleep in the driver's seat of a car that was stationary in a traffic lane. The engine was stopped, and the key was in the ignition. The car's brake light went off when Griffin got out of the car. While Griffin was asleep when the officer approached, he had placed himself behind the wheel of the car and could have started it and driven away. Griffin’s sentence was correct. Fla. Stat. ch. 322.28 (1982) provided that revocation of a driver's license was a penalty for the offense of driving a motor vehicle while under the influence of alcoholic beverages. Fla. Stat. ch. 316.193 (1982) defined that offense as including being in the actual physical control of a motor vehicle while under the influence of alcoholic beverages.