In Illinois a driver is guilty of a DUI if he is driving while under the influence of alcohol or is in actual physical control of a vehicle.

So what exactly does it mean to be in actual physical control of a vehicle?

Actual Physical Control Under Illinois Law

The language in the Illinois DUI statute (Section 11-501 of the Illinois Vehicle Code) says…

The law is clear that one need not be in the driver’s seat of a vehicle to be in actual physical control of it.

He or she need only have the capability or potential of operating the vehicle. People v. Niemiro, 256 Ill. App. 3d 904, 909 (1993).

Four Factors Determine If You Are In Actual Physical Control Of A Vehicle

In Illinois, the presence of four factors may lead to a DUI conviction for falling asleep behind the wheel while drunk.

The specific question a court is answering when looking at these factors is whether the defendant was in actual physical control of the car?

Here are the factors:

1. Possessed of the ignition key
2. Physical capability to operate the vehicle
3. Sitting in the driver’s seat, and
4. Alone in the car with the doors locked.

The issue of actual physical control is determined on a case-by-case basis. Other factors not listed may influence a court. The factors themselves only provide a guideline to determine whether the defendant had actual physical control of the vehicle. 

Why is this the law? 

The main reason the law is this way is to prevent an inebriated person from doing something stupid with a car even thought the are not technically “driving” it.

By criminalizing the reckless behavior of driving while under the influence, the State is indirectly preventing the consequences of that behavior. So, wiping out any kind of actual physical control of a car by a drunk person creates an extra level of protection. 

Actual Physical Control Examples

Several Illinois courts have found a person to be in actual physical control of a vehicle, despite not being in the driver’s seat. See the cases below:

People v. Cox

People v. Cox, 2020 IL App (2d) 171004 (February).

Defendant was standing outside his truck with the driver’s door open. The truck was on and running. Court said defendant was in a position where he could exert control over the truck.

People v. Morris

People v. Morris, 2014 IL App (1st) 1130152 (July).

The evidence showed defendant was in the driver’s seat slumped
over the steering wheel with the keys to the car in his right hand. A
rational trier of fact could have found he was in control of the car, his
eyes were bloodshot, he smelled of alcohol, and his performance on
one sobriety test indicated he was intoxicated.

People v. Davis

People v. Davis, 205 Ill. App. 3d 431, 433 (1990).

An officer came across a parked car. The keys were in the ignition and a man was sleeping in the back seat in a sleeping bag. Police had to break a window when they couldn’t wake defendant through other means. He was intoxicated and convicted of being in actual physical control of his vehicle.

People v. Eyen

People v. Eyen, 291 Ill. App. 3d 38, 43-44 (1997).

Defendant was pushing his car on the roadway. He was pushing from the driver’s side with the driver’s door open. No other people were in the area. Defendant was intoxicated and the keys to the ignition were in his pocket. Court found defendant was in actual physical control of the car.

People v. Slinkark

People v. Slinkard, 362 Ill. App. 3d 855, 858 (2005).

Defendant was convicted of being in actual physical control of a car when police saw defendant staggering in a yard near an SUV with extensive front-end damage and emitting smoke. The SUV was registered to him and he was highly intoxicated.

Snapshot In Time Will Convict

It will do nothing for the person to try to convince the judge or the jury that he had no actual intention to drive while drunk.

The law on this issue does not help a driver. The factors around a case are just looking at a snapshot in time to determine if in that moment the person was in “actual physical control” of the vehicle.

It doesn’t matter what the person actually intended. 

There is also the strong circumstantial fact that a person found by police behind the wheel probably drove the car to the location it was found. That is a DUI. Often, it is too difficult to make this finding beyond a reasonable doubt, so the law doesn’t require it. 

Once a court determines that a drunk person is in actual physical control of a car guilt is established and the law does not need to look at anything that happened before that instant. Nor does the court need concern itself with what could have happened after that instinct.