NO KEY, THEN NO ACTUAL PHYSICAL CONTROL/HEARING OFFICER INVALIDATES DUI SUSPENSION

B.A. was arrested for DUI in the early morning hours of October 11, 2009, in the parking area of Fort Pierce's South Beach Jetty Park. According to the Arrest Affidavit, B.A. was "sleeping" in the driver's seat. SLCSO Deputy Benjamin Deblieck said that the driver had difficulty awakening, had a strong odor of an alcoholic beverage, and failed all standardized field sobriety tests. Dep. Deblieck placed B.A. under arrest and transported him to the St. Lucie County Jail. At the jail, B.A. refused to submit to a breath test.

Attorney Jeffrey Garland immediately filed for a formal review hearing. The challenge: the suspension for refusing to submit to a breath test. Attorney Garland subpoenaed no witnesses to the hearing. The hearing officer was required to base his ruling upon the documents submitted by the arresting officer.

Attorney Garland moved to invalidate the suspension based upon insufficient evidence to establish that B.A. was in actual physical control of a motor vehicle. Attorney Garland pointed out that the Arrest Affidavit, and supporting documents, showed that the vehicle was not "running"; and that there was no evidence that B.A. had a key to operate the vehicle. Without a key, there was an insufficient factual basis for concluding that B.A. was in "actual physical control".

The hearing officer agreed that there was insufficient evidence. On November 9, 2009, the hearing officer entered a final order invalidating the suspension.

Moral: If you plan to "sleep it off" in a motor vehicle, you should make sure the key is not in the ignition, your pocket nor within reach. The key should be nowhere to be found. If the key is available to you, then the hearing officer might conclude that you have the capability of operating the vehicle.