🚨 DUI Refusal, Actual Physical Control & Key-Location Evidence
By W.F. Casey Ebsary – DUI Defense Attorney, Tampa, Florida
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Introduction: Understanding Florida’s Strict DUI Refusal and License Suspension Rules
In mid-2025, a Florida appellate court reviewed a challenge to a driver’s license suspension after the driver refused a breath test during a DUI investigation. In that case, the driver was found asleep in the passenger seat of a parked vehicle. Nearby deputies reported signs of impairment and discovered a car key lying on the floorboard next to the driver’s feet. Although the driver argued that the hearing officer lacked evidence proving he had “control” of the key, the court held that the officer’s direct observation was enough to establish actual physical control, a foundational requirement for both probable cause and license suspension in refusal cases.
This anonymized appellate example underscores how aggressively Florida applies its refusal laws—particularly when key location suggests the ability to operate the vehicle. As a Tampa DUI attorney, I regularly defend professionals, college students, visitors, and everyday residents facing the harsh consequences of implied-consent violations. If you are dealing with a DUI or refusal case, you can learn more about my background on my bio page and reach me directly through my contact page.
❓ Q&A Landing Page
Q1: What does “actual physical control” mean under Florida DUI law?
Florida law defines “actual physical control” as the ability to operate a vehicle, even if the driver is not actively driving. This can include sitting in a parked car, holding the keys, or having immediate access to them. Under Florida Statute §316.193, which you can review on Justia at https://law.justia.com/codes/florida/2024/title-xxiii/chapter-316/section-316-193/, the courts consistently find control when a driver is impaired and the key is accessible. In the anonymized case described earlier, the court held that a key on the floorboard near the driver’s feet was enough to satisfy this element.
Q2: Why did the court uphold the suspension in the anonymized case?
The court upheld the license suspension because it found competent, substantial evidence that the driver had control of the vehicle. Florida’s appellate courts have long emphasized that reviewing courts cannot reweigh the evidence once the hearing officer makes factual findings. The court also confirmed that possession or proximity to a key is often sufficient. Official appellate guidance on the scope of review can be found through the Florida Supreme Court in City of Deerfield Beach v. Vaillant (419 So. 2d 624), available at https://supremecourt.flcourts.gov/.
Q3: What happens when someone refuses a breath test in Florida?
If you refuse a breath test following a lawful request from a law enforcement officer, your license is automatically suspended under Florida Statute §322.2615, which you can read on Justia at https://law.justia.com/codes/florida/2024/title-xxiii/chapter-322/section-322-2615/. The first refusal results in a one-year suspension, and a second refusal results in an 18-month suspension. This occurs even if you are never convicted of a DUI in criminal court. The refusal hearing evaluates probable cause, actual physical control, the refusal itself, and whether proper implied-consent warnings were read.
Q4: Do I have the right to challenge a refusal suspension?
Yes. You have the right to challenge your license suspension at a formal review hearing before the Florida Department of Highway Safety and Motor Vehicles. You must request this within 10 days of the arrest to protect your driving rights. The hearing officer reviews evidence, listens to testimony, and evaluates whether the officer followed legal requirements. Details about driver’s license administrative reviews are available on Florida’s official government site: https://www.flhsmv.gov/.
Q5: Does being in the passenger seat protect me from a DUI or refusal suspension?
Being in the passenger seat does not automatically shield you from a DUI, particularly if you have access to the keys. Florida courts have consistently upheld suspensions where impaired drivers were found asleep in the passenger seat with keys within reach. The reasoning is that the driver has the ability to operate the vehicle—especially if the keys are accessible—and therefore meets the standard for “actual physical control.” The court in the anonymized case applied exactly this logic.
Table: Florida Administrative Suspension Periods for DUI Refusal
| Incident Type | Suspension Length | Notes |
|---|---|---|
| First Refusal | 12 months | Applies even without DUI conviction |
| Second Refusal | 18 months | Criminal charge for second refusal possible |
| DUI Arrest (No Refusal) | 6–12 months | Based on test results |
Q6: How do officers determine probable cause when the car is not moving?
Officers rely on observable factors such as signs of impairment, the location of keys, the driver’s admissions, and vehicle position. Courts allow officers to infer control if a reasonable person would conclude the driver could operate the vehicle. The anonymized case demonstrates that even without movement, probable cause was established because the keys were within the driver’s reach.
Q7: What evidence did the officer rely on in the anonymized case?
The officer observed the driver asleep in the passenger seat, noted multiple indicators of impairment, and saw a car key in plain view on the floorboard by the driver’s feet. Officers are trained to document these details and testify to their observations. The court ruled that this factual testimony—not mere assumption—met the requirement for substantial evidence.
Q8: Why does Florida treat refusals so harshly?
Florida’s implied consent law exists to encourage compliance with testing and protect public safety. Legislators have determined that the ability to refuse testing should not give impaired drivers an advantage. As a result, the state imposes strict administrative penalties, many of which are independent of a criminal conviction. Official statute links are available at https://www.leg.state.fl.us.
Chart: License Suspension Timeline After a DUI Refusal
X-Axis: Days from Arrest
Y-Axis: Legal Milestones
- Day 0: Arrest & License Confiscated
- Day 1–10: Deadline to Request Hearing
- Day 30: Temporary Permit Expires Without Hearing
- Day 45–90: Hearing Outcome Issued
This chart helps users visualize how quickly their driving privileges can be affected.
Q9: What should I do immediately after being arrested for DUI in Florida?
Your first step should be to protect your driving rights by requesting a formal review hearing within 10 days. You should also consult a DUI attorney who understands administrative hearings, probable-cause challenges, and refusal defenses. You can learn more about my DUI background and credentials at my bio page: https://dui2go.com/about/.
Q10: Can key-location evidence be successfully challenged?
Yes. While key proximity often supports APC, the defense can question whether the key belonged to the vehicle, whether the officer used assumptions instead of facts, and whether the key was placed there by someone else. These issues require a careful cross-examination strategy. If your case involves key-location allegations, you can contact me for a full analysis of your options at https://dui2go.com/contact/.
🎥 Video Section
This section will embed a video explaining “Actual Physical Control” with animations
Additional Actual Physical Control FAQs
FAQ 1: Is it legal to sleep it off in my car in Florida?
Sleeping in your car while impaired may still lead to a DUI if you have the ability to operate the vehicle. Courts focus heavily on key access and the totality of the circumstances. Therefore, even choosing the passenger seat may not avoid legal consequences.
FAQ 2: Can a second refusal lead to separate criminal charges?
Yes. A second refusal after a prior refusal is a misdemeanor under Florida Statute §316.1939, which you can read on Justia at https://law.justia.com/codes/florida/2024/title-xxiii/chapter-316/section-316-1939/. This means drivers face both administrative penalties and a criminal case.
FAQ 3: Do I need a lawyer for the DHSMV hearing?
While not required, legal representation is highly recommended. The hearing involves sworn testimony, legal arguments, cross-examination, and evidentiary challenges. Experienced counsel increases the likelihood of protecting your driving privileges.
FAQ 4: Can I get a hardship license after refusal suspension?
Many drivers qualify for a hardship license, but only if they enroll in DUI school and meet eligibility requirements. The Florida DHSMV outlines the hardship process at https://www.flhsmv.gov/driver-licenses-id-cards/dui-and-administrative-suspensions/. A refusal does not guarantee disqualification.
Final Call To Action
If you or a loved one is facing a DUI refusal or key-location allegation in Florida, you deserve strategic and aggressive representation. I have handled hundreds of DUI and refusal cases throughout Tampa Bay and understand exactly how hearing officers, judges, and prosecutors evaluate these issues. You can learn about my background and qualifications on my bio page, or reach me directly for a confidential consultation on my contact page:
👉 Bio: https://dui2go.com/about/
👉 Contact: https://dui2go.com/contact/
