An interesting case from South Dakota, where a man is appealing his Driving under the Influence conviction on the grounds that he was not even driving! How may this affect Florida DUI law?
To DUI or not to DUI…for 54-year-old Donald Nekolite, THAT is the question. The defendant admitted drinking at a local bar back in September 2012. He went outside to grab cigarettes from his truck when he accidently bumped the gear shift into neutral. Without the emergency brake on, the truck rolled back into another car.
Police were called out and investigated. It was determined that Nekolite had a B.A.C. of 0.284, over three and a half times the legal limit in either Florida or South Dakota. His companion/designated driver however, was not drinking. Never the less, police arrested Nekolite for driving under the influence. Police claimed that he was “in actual physical control of his vehicle”.
His conviction is now being appealed to the South Dakota Supreme Court. The ruling is expected to shed more light on the legal definition of physical control.
In Florida along with a few other states, to prove a defendant is guilty of a DUI, the prosecutor must prove beyond a reasonable doubt that: 1. the defendant was under the influence of alcohol or a controlled substance to where his normal faculties were impaired (and/or a 0.08 B.A.C. or above), 2. while he was driving or in actual physical control of a motor vehicle.
Unlike South Dakota, in Florida, if the defendant did not have keys in the ignition or at least readily avaliable (such as in his pocket while he was in the driver seat), there would most likely be no DUI charge, let alone a conviction. Florida caselaw requires actual ability to DRIVE the vehicle. No car keys or ability to start the vehicle, most likely no Florida DUI conviction.
While it will be interesting to see what happens in South Dakota, here in the sunshine state, he would almost certainly have his conviction overturned.
Have you or a loved one been arrested for a DUI or a criminal charge? Then call the Clearwater DUI defense lawyers at Blake & Dorsten, P.A. today. These former prosecutors are experienced trial attorneys.
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