Madelyn Daley
Attorney at Law

US Local 618-509-9724

Our office remains open at this time. Consultations are available via telephone or Face-Time. In-person consultations are available on a case-by-case basis. The safety of our clients and employees is of the utmost importance.

Can I get a DUI in Illinois even if I’m not driving?

While many people believe driving a vehicle while under the influence of alcohol is the only way they can be charged with DUI in Illinois, that can be a costly mistake.

The truth is that under Illinois' DUI statute, you only need to be in "physical control" of a motor vehicle to be charged if your blood alcohol concentration (BAC) exceeds 0.08%. It doesn’t matter whether your car is parked, or even if it won’t start.

Reasons for a DUI while not driving

Whether you are charged with DUI is primarily up to the officer who responds. There are several reasons he or she may choose to cite you, including:

  • Asleep in the driver’s seat: Even if you knew you were in no shape to drive and decided to sleep off the effects of alcohol, when an officer sees you behind the wheel asleep, they will likely assume you got into the car with the intent of driving. They have no way of knowing whether you may have passed out.
  • Keys in the ignition: The officer may also assume that just because the car isn’t running doesn’t mean you didn’t try to start it and then changed your mind. If they see the key is in the ignition, officers typically believe you had every intention to drive.
  • Appearance of intent: Again, this is up to the officer’s judgment, and it doesn’t matter whether you are parked, or if you moved into the passenger or back seat to sleep it off. You can also be charged while parked at a drive-thru restaurant. Police commonly look for intoxicated drivers late at night at drive-thrus as much as scrutinizing drivers leaving bars and nightclubs.

Fighting a DUI without driving

If you are charged with this type of DUI, it’s essential to contact an experienced defense attorney. Many times, DUI without operating charges are the result of people calling in a report to police of a person sleeping in their car. When police rely on this information to make an arrest, there is a better chance of getting the charged dismissed in court due to reasonable doubt and a lack of evidence.

Other common defenses include problems with the police report or contending that the officer had a predetermined bias. This means they believed that you intended to drive the vehicle without any proof to support that conclusion. Police have to prove that you were driving while drunk, or intended to drive, and that is not always an easy task for prosecutors.

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