Can You Get a DUI in a Self-Driving Tesla or a Waymo in Florida?

Driverless taxis now carry paying riders in Tampa. As of this writing, Waymo and Tesla both run driverless ride services there, and plenty of privately owned cars will steer, brake and change lanes on the interstate while the person in the driver’s seat watches. So the question comes up after a night out: if the car is doing the driving, can the person inside it still be arrested for DUI in Florida?

This is new ground for Florida courts, so much of what follows is my read of the statutes and not settled law. Two facts are likely to matter most: which kind of car you are in and where you are sitting. The DUI statute itself says nothing about self-driving cars, and its wording reaches further than many folks expect.

What the DUI Statute Asks

Section 316.193(1) makes it a crime when a person “is driving or in actual physical control of a vehicle within this state” while impaired, or with a breath or blood alcohol level of 0.08 or more. The second phrase is the one that matters here. Florida’s standard jury instruction, as the Second District Court of Appeal quoted it in State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011), says “the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.” The same opinion says capability means “practical ability.”

So the question is where you were and what you could have done with the vehicle, whether or not anyone, or anything, was steering at that moment. The reason goes back to Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984). The court there said the Florida Legislature’s intent was similar to what an Oklahoma court had described, that making actual physical control a crime was “intended to enable the drunken driver to be apprehended before he strikes.” My page on actual physical control walks through how courts weigh the keys, the seat and the condition of the vehicle.

Your Own Car on Driver Assist

Start with the car in your driveway. Many newer cars, Teslas among them, sell a feature that steers, brakes and changes lanes while a licensed driver is expected to watch the road and stay ready to take over. The person using it sits in the driver’s seat of a car that is running and moving, usually with the wheel, the pedals, and the key or the phone that unlocks the car within reach.

In Fitzgerald, the court pointed to three factors an earlier Florida decision had drawn from Alabama cases: “active or constructive possession of the ignition key, position in the driver’s seat, and a vehicle that is operable.” A person riding in the driver’s seat of their own car while the assist feature steers will usually have all three. On the wording of the instruction, my read is that this person can be charged with DUI even if they never touched the wheel, because the test is the capability to operate the car, “regardless of whether” they are operating it.

A fair objection is that Florida passed a law saying the computer is the operator. It did. Section 316.85(3)(a) says that “the automated driving system, when engaged, shall be deemed to be the operator of an autonomous vehicle, regardless of whether a person is physically present in the vehicle while the vehicle is operating with the automated driving system engaged.” Three things in the text limit how far that sentence carries someone charged with DUI.

First, the sentence begins “For purposes of this chapter, unless the context otherwise requires.” That chapter is chapter 316, the same chapter that holds the DUI statute, so, as I read it, the argument is available to make, and the words about context give a court room to reject it. Second, the DUI statute asks whether a person was “driving or in actual physical control,” a phrase that leaves out the word operator, and nothing in section 316.85 says a person sitting behind the wheel lacks that control because software was also at work. Third, Florida defines an automated driving system as hardware and software “collectively capable of performing the entire dynamic driving task of an autonomous vehicle on a sustained basis.” Whether a feature that depends on a human supervisor meets that definition is an open question.

Florida’s appellate courts don’t appear to have published a decision on a DUI charge against someone whose car was steering itself, as of this writing. Until one does, my read is that driver assist leaves the person in the driver’s seat inside the DUI statute, and a court could see it differently.

The Back Seat of a Robotaxi

Florida law has its own category for a car built to run with no human driver. The statutes call it a fully autonomous vehicle, meaning one “equipped with an automated driving system designed to function without a human operator.” Section 316.85 says “a licensed human operator is not required to operate a fully autonomous vehicle,” and that such a car “may operate in this state regardless of whether a human operator is physically present in the vehicle.”

A back seat rider in one of those cars doesn’t look like someone doing the driving in any ordinary sense. The remaining question is actual physical control, which needs the “capability to operate the vehicle.” A rider in the back seat who has no key and no access to the wheel or pedals is hard to describe as someone with the practical ability to operate the car. Griffin itself quoted a Minnesota decision on the purpose of a law like this one, which is “to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” As I read that language, getting home as a passenger is the choice the law is trying to encourage.

That reading hasn’t been tested. Florida’s appellate courts don’t appear to have decided whether a robotaxi rider can be in actual physical control, as of this writing, and a few facts could change the picture. Some driverless cars still have a steering wheel and pedals. A rider who sits behind them, or who reaches for the controls while the car is moving, gives a prosecutor the driver’s seat factor and an argument about capability. The back seat keeps the question simple.

The Drink in Your Hand

A DUI charge is one risk, and the open container law is another. Section 316.1936(2)(a) makes it unlawful “to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.” The statute classes a passenger’s violation as “a nonmoving traffic violation.”

The statute has exceptions. One is written around a human driver and covers a passenger where “the driver is operating the vehicle pursuant to a contract to provide transportation for passengers and such driver holds a valid commercial driver license with a passenger endorsement.” Another is broader and exempts “passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation.” That one has no driver requirement, so my read is that a robotaxi rider has an argument that it applies. Florida’s appellate courts don’t appear to have applied either exception to a car with no driver at all. A rider with no open container in hand never has to make the argument.

If You Were Arrested in a Car That Was Driving Itself

Actual physical control is decided on the facts of each case. Which seat you were in, where the key or phone was, and whether the car needed a human to supervise it are the kinds of facts that bear on whether you had the capability to operate it. A privately owned car’s own data may show whether the assist feature was on and what the person in the seat was doing, and a driverless car records far more than an ordinary car does. That record can help either side, so asking for it early makes sense.

The rest of a DUI case should get examined the same way it would in any other car. The reason for the traffic stop, the field sobriety exercises, and the breath or blood result each get examined on their own. If you or someone in your family was arrested in Tampa Bay, my St. Petersburg DUI and criminal defense page explains how I approach these cases, and the DUI defense section covers each stage. If you were hurt in a crash with a driverless car, my post on robotaxi crashes in Florida covers the injury side.

Common Questions

Can you get a DUI in Florida if the car was driving itself?

My read is that you can be charged. Section 316.193 covers anyone “driving or in actual physical control of a vehicle,” and the jury instruction, as a Florida appeals court has quoted it, asks whether the person was in the vehicle with the capability to operate it, whether or not they were operating it. A person in the driver’s seat of a car on driver assist can fit that wording, though no Florida appeals court appears to have ruled on it.

Is a Waymo passenger in actual physical control of the car?

Florida’s appellate courts don’t appear to have decided it, as of this writing. The instruction requires the capability to operate the vehicle, and a back seat rider with no key and no access to the controls is hard to fit into that.

Doesn’t Florida law say the self-driving system is the operator?

Section 316.85(3)(a) deems the automated driving system the operator when it is engaged, “unless the context otherwise requires.” The DUI statute asks about driving or actual physical control, and Florida’s appellate courts don’t appear to have decided whether the operator rule takes a person in the driver’s seat outside it.

Can I drink in a robotaxi in Florida?

Florida’s open container law applies to a passenger in a vehicle being operated in the state. It exempts passengers in vehicles used primarily to carry people for compensation, and whether that exemption reaches a car with no driver hasn’t been settled.

Further Reading

The sources behind this post, so you can read what I read.

1. Section 316.193, Florida Statutes (driving under the influence)
2. Section 316.85, Florida Statutes (autonomous vehicles)
3. Section 316.003, Florida Statutes (definitions)
4. Section 316.1936, Florida Statutes (open containers)
5. State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011)
6. Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984)

This post is general information about the law, not legal advice, and it does not create an attorney-client relationship. Past results do not guarantee a similar outcome. The law discussed is sections 316.003, 316.193, 316.85 and 316.1936, Florida Statutes (2026), Florida Standard Jury Instruction (Criminal) 28.1 as quoted in State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011), and Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984), as of November 11, 2026.