What is Actual Physical Control in DUI Cases, and What is the Crash Exception?

April 23, 2025 Don Pumphrey, Jr. Criminal Defense, Drunk Driving/DUI Social Share

In Florida, DUI is a very serious offense. Depending on the facts of a case, DUI can be charged as either a misdemeanor or a felony. Often, someone charged with DUI can face years of prison time under Florida Statutes Section 316.093 if found guilty at trial. 

For someone to be arrested for DUI, it must typically be established that they were in actual physical control of an operable vehicle. However, there is a notable exception to this, known as the “crash exception.” This article will explain actual physical control, the crash exception, and how Florida courts have handled disputes arising from this.

According to the Florida Bar’s standard jury instructions for DUI, actual physical control occurs when someone is “physically in (or on) the vehicle and has the capability to operate the vehicle, regardless of whether they are actually operating the vehicle at the time.” Florida’s courts have issued various rulings in cases arising from disputes regarding whether someone arrested for DUI was in actual physical control.

Courts have been clear that an officer must develop probable cause to believe someone was driving or in actual physical control of a vehicle while impaired. This probable cause must be established by the totality of the circumstances. It may arise through an officer’s observations of a suspect’s behavior, their physical appearance, admissions made by the driver, or other relevant information. State v. Kliphouse, 771 So.2d 16 (Fla 4th DCA 2000); State v. Saravia, — So.3d —- (2025).

An arresting officer must make a personal assessment of impairment and actual physical control before a DUI arrest – not simply obtain information through alleged witnesses. In Steiner, the court ruled that despite a seemingly credible witness account of a driver having been in a vehicle and impaired, Steiner was improperly arrested for DUI. The officer never saw the defendant in the vehicle, and a civilian witness alone could not be used to establish probable cause. Steiner v. State, 690 So. 2d 706, 708 (Fla. 4th DCA 1997).

Steiner affirmed the warrantless misdemeanor arrest requirement. This prevents officers from arresting someone for a misdemeanor without a warrant unless they personally witnessed facts that satisfy every element of the alleged crime (Florida Statutes Section 901.15(1)).

The Bass court reached a similar result. There, an officer saw Bass standing along the driver’s side of the vehicle with his door open, found he was inebriated, and arrested him for DUI. Though Bass never argued he was not the driver, the court still suppressed the unlawful warrantless arrest – as the officer did not witness Bass in actual physical control of the vehicle. State v. Bass, 19 Fla. L. Weekly Supp. 653a (Leon Cty. Ct. April 18, 2012). 

An important deviation from this rule is known as the “traffic crash exception.” Under Florida Statutes Section 316.645, a police officer may arrest any driver involved in a crash without a warrant if the officer has reasonable and probable grounds to believe the person has violated traffic laws in connection to the crash. This includes if that person is under the influence. State v. McCartha, 372 So.3d 754 (Fla 1st DCA 2023). 

Under McCartha, the crash exception applies any time the vehicle collides with another object. Importantly, this object does not have to be another vehicle – it can be a person, or an object such as a ditch.  It also does not require that damage be done to any other vehicle or property. 

McCartha ruled that even though there was no evidence the driver hit anything other than the road or ditch, the fact that his vehicle was stuck in a ditch and McCartha’s apparent drunkenness allowed a DUI arrest under the “crash exception.” Although McCartha’s vehicle was inoperable and he was not inside it when officers arrived, the crash exception allowed for a warrantless arrest because he failed field sobriety tests and smelled strongly of alcohol. 

A similar result was reached in Boynton. State v. Boynton, 556 So.2d 428 (Fla 4th DCA 1989). There, a vehicle was similarly inoperable and found in a ditch. Boynton was in the driver’s seat, appeared inebriated, and failed field sobriety tests. The court observed that there was substantial circumstantial evidence that Boynton had driven the vehicle off the road into a ditch while drunk, which led to it becoming inoperable. As a result, Boynton’s arrest was upheld as lawful.

In sum, to make a warrantless misdemeanor arrest for DUI under Florida Statutes Section 316.093, officers must develop probable cause of every element of the offense based on their direct observations. A person must typically be in actual physical control of an operable vehicle and inebriated before an officer can make a warrantless arrest. 

However, the “crash exception” allows for officers to make a warrantless misdemeanor arrest for DUI even if the vehicle is inoperable, so long as there is probable cause a traffic law was broken and a crash took place. A crash is broadly defined as any time a vehicle “collides” with a person, vehicle, or other object. 

Being charged with DUI or a related offense in Florida is very serious. A conviction could result in lengthy prison sentences and hefty fines. It is vital for someone facing these charges to find experienced and aggressive legal representation as soon as possible.

DUI Defense Lawyers in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the experienced criminal defense attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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