Law School Case Brief
State v. Fitzgerald - 63 So. 3d 75 (Fla. Dist. Ct. App. 2011)
To prove the element of actual physical control under § 316.193(1), Fla. Stat. (2008), the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time.
A police officer found defendant Fitzgerald sitting, intoxicated, in the driver's seat of a parked car. She readily produced the car keys upon the officer's request. She was charged with driving under the influence, a third-degree felony pursuant to section 316.193(2)(b)(1), Florida Statutes (2008), because she allegedly has two prior DUI convictions. She filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190. The court held a hearing on both the motion to dismiss and a motion to suppress. After hearing the arresting officer's testimony and the parties' arguments, the circuit court granted the motion to dismiss, holding that the State could not prove that defendant was in actual physical control of a vehicle at the time of the alleged offense. The State challenged the case’s dismissal.
Was the State able to prove that defendant was in actual physical control of the vehicle at the time of the alleged offense, thereby justifying defendant’s conviction?
The court of appeal held that the facts before the circuit court satisfied the State's burden to prima facie demonstrate that defendant was in actual physical control of a motor vehicle while under the influence of alcohol. The State could prove the charge with evidence that defendant was physically in a vehicle with the capability to operate it, regardless of whether she was actually operating it at the time. Defendant was sitting in the driver's seat, and she readily produced the car keys upon the officer's request. There was no evidence that she needed to search for the keys or that she retrieved them from the passenger. The car was stopped in an intersection with its lights on. A legitimate inference to be drawn was that defendant placed herself behind the wheel and at any time could have started the car and driven away. The keys were close enough for defendant to use them to start the car and drive away.
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