Sunday, July 29, 2012

Getting a DuPage DUI Without Driving

Let's say you've just walked out of a bar after having one too many.  You get to your car in the parking lot put the keys in the ignition but then decide that you shouldn't drive.  You leave the car running, put the seat back and sleep it off.

Unfortunately, you can still be charged with a DUI.  While you wouldn't be at risk for getting a statutory summary suspension in this scenario because you didn't drive on a public roadway, you could still be charged - still found guilty - of the criminal offense of Driving under the Influence of alcohol.  As a DuPage DUI Attorney, I can tell you that these types of cases are not rare.

Why these cases are not rare is explainable by two factors:  The language of Illinois' DUI statute and the sometimes ridiculously strict  enforcement regime for Dupage DUIs.

DUIs in DuPage - whether they are charged under local ordinance as  a Naperville DUI or Wheaton DUI ,
or whether they are charged under by say the Illinois State Police - are all based on the Illinois Vehicle Code:

Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.
    (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
        (1) the alcohol concentration in the person's blood
or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;
        (2) under the influence of alcohol;
        (3) under the influence of any intoxicating compound
or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
        (4) under the influence of any other drug or
combination of drugs to a degree that renders the person incapable of safely driving;
        (5) under the combined influence of alcohol, other
drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
        (6) there is any amount of a drug, substance, or
compound in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act, or methamphetamine as listed in the Methamphetamine Control and Community Protection Act.

A careful reading of the statute indicates just how it is you could get a DUI even if you weren't driving.  Being in "actual physical control" of any motor vehicle within the State is the key phrase.  Reviewing DUI case law will reveal a consistent theme:  Whether there is "actual physical control" is to be determined on a "case by case basis."  Unfortunately for well-intentioned drivers who think they'll be fine by "just sleeping it off" this case-by-case analysis has resulted in a line of appellate cases that suggest if the keys are anywhere near the driver, much less the ignition, the defendant can be found guilty of Driving Under the Influence of Alcohol, even though there was no driving.

If you need to discuss this issue with DuPage DUI Lawyer Brent Christensen, feel free to comment on this post or call 630-665-5965.

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