Can I Fight a DUI If I Was Not Actually Driving?

 Posted on June 29, 2024 in DUI

Driving while under the influence of alcohol is illegal in Illinois and across the United States. The legal blood alcohol limit is 0.08 percent in every state except Utah. Most adults are aware they could be charged with DUI if they are pulled over and given a breathalyzer test that reads at or above the legal limit. Far fewer are aware they could be charged with DUI when they were not driving.

Illinois state law requires that a driver be in "actual physical control" (625 ILCS 11-501) to be charged with a DUI. If you have been arrested and charged with DUI, you need solid legal advice from an experienced Libertyville DUI lawyer. Having a skilled attorney by your side advocating on your behalf gives you the best chance of a positive outcome.

What Does "Actual Physical Control" Mean?

Actual physical control means that while the individual may not have been driving at the time, they have the clear ability to start the vehicle and drive. The determination of whether a person was in actual physical control can come from direct evidence or circumstantial evidence. As an example, if a person pulls off the road, puts the car into "park," and passes out, it could be determined that the ability to put the car into motion upon waking is a given.

The farther away the individual is from the driver’s seat and the keys to the car, the more difficult it is for the state to prove actual physical control. While proving actual physical control becomes more difficult if the keys are nowhere to be found, the driver is in the back seat, or is not even in the car, it is still possible.  

Can I Be Charged with DUI if I Was "Sleeping It Off" in the Back Seat?

Most people think they are being responsible when they know they have had too much to drink, and they pull over and get into the back seat to "sleep it off." The police may look at the situation a bit differently. While direct evidence is best from the state’s point of view, circumstantial evidence can also be used by the police to prove actual physical control. Although the individual is in the back seat asleep, the police may assert the individual can easily return to the driver’s seat, start the car, and drive away while still under the influence.

What About DUI Charges When I Was Not Even in the Vehicle?

Being charged with DUI while asleep in the back seat is bad enough, but what about those who were not even in the vehicle? The state is charged with proving an individual drove the car while intoxicated. To this end, they can argue that while the person was not in the car when arrested, circumstantial evidence clearly shows they were driving the vehicle while intoxicated.  

Suppose a person walking on the side of the road is given a breathalyzer test; the results show that the BAC is above the legal limit.  If the police also find that the hood of that person’s car down the street is still warm to the touch, they can infer the individual was driving while under the influence.

In the Illinois case of People vs. Call, a driver was involved in a single-car accident. A witness saw the accident and called the police to report the accident. When the police arrived, they found the vehicle's driver walking on the side of the road almost two miles away.

The officer observed the driver to have "glassy eyes and slurred speech." Considering the time the accident was called in, the police inferred the driver was driving under the influence. The DUI conviction in this case was upheld.

Contact a Lake County, IL DUI Attorney

Should you find yourself charged with a DUI when you were not driving, your first call should be to an experienced Cook County DUI attorney from The Law Offices of Matthew R. Gebhardt, P.C.. Time is of the essence in a situation like this—or when charged with a DUI under any circumstances. To ensure your future is protected, a skilled DUI attorney who will fight for your rights is essential. Contact The Law Offices of Matthew R. Gebhardt, P.C. today at 847-239-4703 for a free consultation with our Lake Zurich, IL DUI defense attorney.