Tampa Bay Bucs defensive lineman Da'Quan Bowers' recent arrest for handgun possession at a N.Y.C. airport raises the question: when is a criminal act abandoned and the suspect no longer in jeopardy of arrest? Preparing for a return flight home, Bowers apparently tried to present his handgun at the airport for safe transport before he went through security to board. Although properly registered and permitted in his home state, such possession violated strict N.Y. gun laws and he unwittingly brought it with him. Aside from other alternatives to deal with the gun and where all this falls on the stupidity scale, this young man clearly sought to avoid committing a criminal act or at least abandon one he was committing. The N.Y. law may be one of "strict liability", that is, the knowing possession itself is a crime even if you didn't intent to violate the law.
Florida's DUI laws share some parallels with this scenario. I have handled many cases where a client gets in his or her car after consuming alcohol or medication, only to realize they feel impaired at some point. What happens next greatly affects the outcome with the police. Depending when that "uh oh" moment arrives, some simply sit in the driver's seat. Others have the key in their hand or have put it in the ignition. Next is starting the vehicle or actually driving off. Once having driven off, many pull over. Do they then put it in park, turn off the engine, put the keys away? Have they only attempted a DUI or have they abandoned a completed DUI? Do any of these actions matter or have they violated the DUI law?
In the Sunshine State, you may be guilty of DUI not just for driving while impaired due to alcohol or controlled substances, but also if you are in "actual physical control" of the vehicle. What does that mean? You may insist, "I didn't mean to drive impaired!" DUI laws do not require specific intent to commit this crime. So even if your actions show an intent not to operate that vehicle, like Bower's hapless handgun dilemma, just being in possession of an operable vehicle in a position to drive may be enough to run afoul of this law. Efforts not to drive may play well with a jury, minimize your punishment or even convince the prosecutor to reduce the charge, but if you put yourself in a position to drive, that is actual physical control.
So what to do? When you've made the decision not to drive, if you are driving, pull over as soon as you safely can do so in a legal spot, turn off the car, put the keys where you can't reach them easily (out the window, in the glove box or the trunk for example but not in your pocket) and get into the back seat. This last piece is particularly important for vehicles with push button
starters where the key fob need only be in the vicinity of the vehicle
to start it. Once you've done this, it will be a stretch for an officer to make a DUI arrest if you were not seen driving. And finally, if you have a phone, call for a ride or taxi.
