Can I Receive a DUI if I am Not Driving?

Posted by John Callahan | Jul 17, 2016 | 0 Comments

Having handled so many DUI cases over the years, I have seen several clients who were charged with a DUI but claimed that they were not driving the vehicle and argued that this meant that they can't be guilty of a DUI.  According to the Illinois Vehicle Code, in order to be guilty of a DUI, the prosecution will need to prove beyond a reasonable doubt that you either were driving the vehicle or in actual physical control of the vehicle.  We all know what it means to be driving a car, but what does it mean to be in “actual physical control” of a vehicle?

While there is no simple definition of “actual physical control,” we know that you do not need to be driving the vehicle to be in actual physical control of the vehicle.  Since there is no clear definition, the courts often look at a number of factors to determine if you were in actual physical control of the vehicle.  The factors most considered by the courts are 1) whether you were positioned in the driver's seat, 2) whether you had the key needed to start the vehicle, 3) whether you were alone in the vehicle, and 4) whether the vehicle's doors were locked.  It should be noted that it does not matter whether you intended to drive the vehicle, as that is not one of the factors that courts consider.

These factors are looked at on a case-by-case basis, meaning that depending on the exact fact situation, certain factors may weigh more heavily than others.  This means that in one scenario having all four factors that weigh against the defendant may not be enough to establish guilt beyond a reasonable doubt, but in another scenario one factor could weigh so heavily towards guilt so as to establish it beyond a reasonable doubt. Using these factors, courts have previously found people were in actual physical control of the vehicle when the person is sleeping or sitting in a parked but running vehicle.   In one instance, the court found a person to have been in actual physical control of the vehicle when he was asleep inside a sleeping bag in the back seat of his car because he was the only one in the vehicle, he had locked the vehicle's doors, he had left the keys in the ignition, and he had the physical capability of starting the engine and driving the vehicle immediately.

What this means for all those who are reading this is that just because your vehicle isn't turned on and in drive does not mean that you cannot get a DUI.  The simplest solutions to this problem is to monitor your drinking and to avoid interacting with your vehicle while you are intoxicated. But if you have received a DUI while the vehicle is not in motion, you have a few options in order to fight the DUI.  You can always argue that the factors do not establish that you were in actual physical control of the vehicle beyond a reasonable doubt; again, because the factors are weighed on a case-by-case basis, a single strong factor may be enough to bring about a finding of not guilty.  Of course, you can always argue that the officer did not have probable cause to arrest you, and that one of the other elements of DUI, that 1) you were using a vehicle 2) in the state of Illinois 3) while you were under the influence of alcohol or drugs, were not met.

If you have been charged with a DUI, contact the DUI attorneys at John W. Callahan for skilled representation.  We have over a decade of experience handling DUIs and we will work with you to pick and put into action the best strategies for winning your case.

–Posted by John W. Callahan, DUI attorney

About the Author

John Callahan

You never get a second chance to make a first impression. You may also never get a second chance to preserve your freedom if faced with criminal or DUI charges. If you are currently facing criminal charges, contact the law offices of John W. Callahan to protect you, your rights and your freedom. ...


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