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…
A person shall not drive or be in actual physical control of any vehicle within this State while *** under the influence of alcohol.”
625 ILCS 5/11-501(a)(2)
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:
- Possessed of the ignition key
- Physical capability to operate the vehicle
- Sitting in the driver’s seat, and
- 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.
Illinois DUI Resource Page
Check out the Illinois DUI Resource Page to learn more about DUI in Illinois.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.
Samuel Partida, Jr. is now prosecuting criminal law cases in an Illinois county near you. He is, therefore, unavailable to answer questions on this site. Always remember, there is no substitute for steady, persistent attention to the cases.
Stuart Smith
at Stuart Smith Law Office
In a discussion in another forum Attorney Smith pointed out that “You don’t have to be at the wheel. You can be sleeping it off in the bar parking lot and in the backseat. You have the key (and no one in the driver’s seat) you are in physical control for DUI purposes. It may be enough that you just have the key even with someone else in the driver’s seat. Please Sam lets give full and correct info. You could get someone busted when they say Sam said I could sleep it off in the backseat and not get a DUI. Also if you are dunk you may be so drunk that you aren’t physically capable of operating but that is no defense as voluntary intoxication was removed as a defense some years ago.”
I agree with Attorney Smith that even trying to “sleep one off” in the back seat could lead to a DUI. Smith’s final advice about this case is that:
“In fact the case also cites to: People v. Davis, 205 Ill. App. 3d 431, 435 (1990) (defendant found sleeping in backseat with keys in ignition). They refer to Watson where the Il. S. Ct. says find a way to stay out of the car by finding another way home or alternative lodging. That’s the advice you should be giving.”