Wednesday, January 4, 2012

Intent to operate a motor vehicle is not an element of the charge of DUI



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The Intent to Drive is not an element of DUI Charge

Intent to operate a motor vehicle is not an element of the charge of DUI:

Florida DUI law reads, in pertinent part, as follows:

Fla. Stat. 316.193, Driving Under the Influence:

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b) The person has a blood- alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Although Florida law guarantees a defendant the right to argue his theory of defense, a defendant may do so only so long as the "theory is valid under Florida law." Peterson v. State, 24 So. 3d 686, 690 (Fla. 2d DCA 2009). 

Intent to operate a motor vehicle is not an element of the charge of DUI, nor is lack of intent to operate a motor vehicle a legally cognizable defense to DUI. See § 316.193, Fla. Stat. (2010).

Evidence sought to admit (that he had called for a ride and was waiting, in his car with the radio on, for that ride at the time of his arrest) is irrelevant to whether or not petitioner committed DUI – specifically, the “actual physical control” requirement. See § 90.401, Fla. Stat. (2010) (defining relevant evidence as “evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings”). Evidence of Petitioner’s alleged lack of intent to drive would not operate to prove or disprove whether the petitioner was in “actual physical control” of his vehicle. In fact, such irrelevant speculation regarding the Petitioner's subjective intentions would only serve to do one of three things: (1) confuse the jury; (2) lead the jury to believe that “intent” is an element of the crime of DUI; and/or (3) create sympathy for the petitioner, possibly resulting in a jury pardon.


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A professional Association

Attorney & Counselor at Law 
Tel: (954) 788-1355
Fax (954) 788-1357