The state may establish actual physical control in an Orlando DUI case through circumstantial evidence, including expert witness testimony.In every Orlando DUI case, the government must prove that
The defendant drove, or was in actual physical control of a vehicle, andWas under the influence of either alcohol beverages or controlled substances to the extent that the driver’s normal faculties are impaired, or had a BAC over .08See Standard jury instructions in Orlando DUI cases (Word version)
In most Orlando DUI cases, the State can prove that a defendant was the driver of the vehicle because, well, the police officer sees the person driving the car. Easy. No problems at all.
But if the DUI case arises out of an accident, proof of actual physical control isn’t as easy to establish.
When the DUI investigators from the Orange County Sheriff, Florida Highway Patrol, or Orlando Police are investigating a DUI accident, they usually don’t arrive on scene contemporaneously with the accident. Depending on other issues in the area, it may be 20 minutes, 30 minutes, even hours before the DUI investigators arrive.
By the time they arrive, the drivers of the vehicles involved have usually gotten out of their cars to inspect the damage or to exchange information.
Unless civilian witnesses are available to testify that they saw the defendant driving, there may not be any direct evidence placing the defendant behind the wheel (and in actual physical control) of an operable vehicle.
Without direct testimony, the State must rely upon circumstantial proof to establish that the Defendant actually drove the vehicle. However, the state may prove this through expert testimony, as they did in West v. State, 745 So.2d 414 (Fla. 5th DCA 1999)
Orlando-DUI-circumstantial-evidence-of-driving-West-v-State-745_So2d_414-Fla-5th-DCA-1999
photo credit: Jean Henrique Wichinoski via photopin cc
