DUI Liability without Evidence of Actual Driving
It may be counter-intuitive to understand a charge of driving under the influence for a driver who is not actually caught driving or operating a car by the arresting police officer. Nevertheless, you can be arrested and charged with a DUI in Illinois in certain circumstances, whether or not the police officers see you actually driving the car. In fact, the keys to the car do not have to be in the ignition, and the driver could be "sleeping it off" and still be convicted of a DUI.
Under Illinois law, a person shall not drive or be in actual physical control of any vehicle while his or her blood alcohol level is 0.08 percent or more, or he or she is under the influence of intoxicating drugs. It is the phrase “actual physical control,” that often gives the police the basis to arrest you for a DUI, even when you are not actually driving a car.
What Constitutes Actual Physical Control?
To determine if a person accused of a DUI had actual physical control of a car is something an Illinois court decides on a case by case basis. Illinois courts look to several factors dealing with the accused DUI driver’s conduct. These factors ask:
- Did the accused possess the ignition key?
- Did the accused have the physical capability to operate the vehicle?
- Was the accused sitting in the driver's seat?
- Was the accused alone in the car with the doors locked?
However, courts do not rigidly follow these factors, and use them more as a guide. All the factors do not have to be answered affirmatively in order for a person accused of a DUI to be convicted. If you are in a car, and not driving or moving the car, but are physically capable of doing so, it is likely that a court will find you have actual physical control of the car.
The police still have to carry out a field sobriety test or a similar test to determine if you are under the influence of alcohol. If the police cannot establish that you were under the influence, then you might have a defense against the DUI charge.
The consequences of driving drunk can be grave; in addition to risking your life, you risk going to prison and paying expensive fines, especially if you have prior convictions for DUI or if you harm other people. If you choose to do the responsible thing and “sleep it off” before driving, do not do it in your car, even in the back seat in a zippered sleeping bag, because this could lead to DUI charges.
Contact A DUI Attorney in Illinois
If you have been arrested for a DUI, and you were not driving the car at the time, contact a knowledgeable Naperville, Illinois DUI attorney at Law Office of Glenn M. Sowa, LLC for a consultation on your case. We are prepared to do what we can to help you overcome these legal obstacles.