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Actual Physical Control and DUI in Chicago

Thinking About Sleeping It Off In Your Car?

You went out for a good time, whether it was to a party, a restaurant/bar, sporting event, or whatever. Although you knew you might have "a drink or two" you did not anticipate drinking as much as you did, and you are now intoxicated enough that you would likely be considered too impaired to drive home. You have no other sober person to drive for you, you have no means to obtain alternative transportation at that time, and you think to yourself, "If I sleep it off here for a few hours, then I will be good to drive home." In Illinois, this decision could likely result in your arrest for Driving Under the Influence of Alcohol, a suspension of your driving privileges, and a finding of guilt in court following a trial. If this is not your first DUI offense, you might then be convicted, sentenced to a jail term, and your driving privileges would be revoked.

Is Driving Required For A DUI?

In Illinois, it is unlawful for a person to be driving OR in actual physical control of an automobile while under the influence of alcohol, drugs, intoxicating compounds, or any combination thereof, under Section 11-501(a) of the Vehicle Code. When most people think of a DUI, they logically assume that since DUI stands for "Driving Under Influence", and that you need to actually drive a car to be found guilty. Unfortunately, this is not correct. The phrase "actual physical control" refers to other common situations where the person is not actually operating or driving the car when observed by police, but the circumstances indicate that the person either was in fact driving prior to the police arrival, or was found in a position that indicated the person had control over the automobile such that he or she could put the key in the ignition or otherwise start the car and drive away.

There have been many instances where motorists were found in their cars under circumstances which caused them to be charged with, and later convicted of DUI, where they were clearly just intending to "sleep it off". Yet their convictions were upheld on appeal, because of the doctrine of actual physical control. In challenges to the Constitutionality of that provision of the law, on the theory that it is vague, and does not place a motorist on reasonable notice as to what is, or is not, actual physical control, the Courts have held that it is not vague, that actual physical control is definable, and the stated purpose or Legislative Intent is "encouraging those who plan to drink to arrange lodging or safe transportation home in advance so that a person who embarks on an evening of drinking with the intention of sleeping it off in a car does not make the actual decision after his or her judgment and alertness have been impaired." People of the State of Illinois vs. James Morris (citing City of Napervile v. Watson)

So What is Actual Physical Control?

So what can constitute actual physical control? One might think that it involves the driver behind the wheel in the driver’s seat, the key in the ignition, engine running, alone in the vehicle with the doors locked, and physically able to operate the vehicle. In reality, the Courts have held that while these may be factors to consider among others, they are not required to all be present; rather, a combination of factors, taken on an individual case by case basis determines whether or not a given situation amounts to "actual physical control."

It has been held that an officer had probable cause to arrest a motorist for being in actual physical control while under the influence where the motorist was found in his truck, which was parked on private property, asleep stretched out across the front seat, with the engine off, and the keys on the floorboard (People v. Long). The Long case was of interest because initially, the trial judge, after hearing the evidence, ruled that the officer lacked probable cause to believe the motorist was in actual physical control under those facts. The reviewing court distinguished between probable cause to believe a crime occurred vs. the proof of that crime beyond a reasonable doubt, and found that there was evidence sufficient for a reasonable person to find that the crime was being committed to reach the probable cause requirement for the arrest, and sent the case back for further proceedings in the trial court.

Later, the parties ultimately reached an agreement where the DUI charges were reduced to Reckless Driving (more like Reckless Sleeping it off in a parking lot) and everyone conveniently avoided the issue of innocence or guilt on the DUI, so we will never know if the Appellate Court would have affirmed a conviction based on those facts.

We do know that the keys do not necessarily need to be in the ignition to support a conviction, see People vs. Karina Martinez, where the keys were sitting on the center console of the vehicle and the car was parked. The Defendant does not have to be behind the wheel, but may even be found in the backseat sealed in a sleeping bag. See People v. Davis. The main thing is not to be in the car, with the ignition keys, where the car is operable, while under the influence, or you will likely run afoul of our Illinois DUI statute.

Our Dependable Chicago DUI Defense Lawyers Can Help

Driving Under the Influence of Alcohol is a serious criminal offense that can carry heavy penalties if found guilty. It can cause the suspension or revocation of one’s driving privileges for a lengthy period of time, and it may result in huge fines, court costs and fees, and a significant jail sentence. If you have been arrested for DUI in Chicago, you need an experienced, aggressive attorney to defend your rights in court.

Contact us here at Mitchell S. Sexner & Associates LLC today, at (800) 996-4824 and schedule an appointment right away to consult with one of our lawyers. With offices in Arlington Heights, Chicago and availability to meet clients at many other locations in Illinois, we are available to help you 24 hours a day.

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