In Illinois a person is driving under the influence of alcohol when a person is in actual physical control of any vehicle while under the influence of alcohol (See 625 ILCS 5/11-501). It is important for Illinois motorists to note that the Illinois DUI Statute does not mentioned the word ‘driving’. Driving Under the Influence may be the generic all-encompassing term that is used to describe the offense outlined above, but nowhere in the statute does is it mandated that an Illinois motorist actually drive a car. Instead, Illinois uses the phrase “in actual physical control of any vehicle”.
The next logical questions becomes, “What is actual physical control” for the purposes of the Illinois DUI statute?
Illinois case law is abundantly clear that a person does not need to actually drive a car to be in actual physical control of a motor vehicle. Courts are to consider several different factors when assessing actual physical control such as whether a person is in the vehicle’s driver’s seat, who has possession of the ignition key, and whether the motorist has the physical capability of starting engine and moving vehicle. Illinois courts have repeatedly held that a person does not even need to be in the driver’s seat to be found to have actual physical control of a vehicle. In fact, a person can be asleep in the car and still be found to be in actual physical control of the vehicle.
There are many varying fact patterns that have led courts to find that a motorist was in actual physical control of a motor vehicle for purposes of DUI.
Those fact patterns include:
• Motorist found asleep at steering wheel of vehicle with ignition keys in his hand, even though the car door was open was in actual physical control of car.
• A Motorist found asleep in driver’s seat with no intention to drive with his seatbelt on and the key in the ignition with the ignition switched to the accessory position is in actual physical control of car.
• Motorist was in actual physical control of car, even though he was asleep in a sleeping bag in the backseat of the car, with key in the ignition, when he was the sole occupant of the car and the doors were locked. The court found the driver to have actual physical control because the driver had physical capability of starting the engine and moving the car almost instantly.
• Motorist found sitting in the driver’s seat asleep with the key in the ignition turned to the on position was in actual physical control of his car.
• Motorist who was discovered asleep behind steering wheel of his car with the motor running even though car was parked in parking lot was found to be in actual physical control of car.
Illinois Courts have ruled that a determination of actual physical control of vehicle for purposes of driving under influence of alcohol offense is to be determined on case-by-case basis. This means that each set of facts is unique and Illinois Courts will look at all of the facts of each and every arrest to make a determination as to whether a motorist is in actual physical control of a vehicle for the purposes of DUI. It is important to have an experienced and knowledgeable attorney in order to adequately defend a DUI allegation where a motorist was not driving the car or in actual physical control of a motor vehicle.