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DUI arrests and “actual physical control”

The Illinois DUI law does not say that you must be “driving” a motor vehicle to be charged with DUI. The law reads in part: “A person shall not drive or be in actual physical control of any vehicle within this State while” (under the influence).

One issue involves what is a “vehicle”. Keep in mind, the law does not limit the offense to something that requires a license to drive or that requires having a license plate.

Any device or implement for transporting human beings, other than human powered devices and snowmobiles, is a “vehicle” (625 ILCS 5/1-217) As such, it is illegal to operate that device while under the influence. This includes tractors, riding lawn mowers, moped and ATV’s. 296 People v. Martinez, 296 Ill. App. 3d 330, 694 N.E.2d 1084, 230 Ill. Dec. 806, 1998 WL 229582 (1998) However, a bicycle, being human-powered, is not a “vehicle” and therefore not subject to the DUI laws. Standard Mut. Ins. Co. v. Rogers, 381 Ill. App. 3d 196, 884 N.E.2d 845, 318 Ill. Dec. 877, 2008 WL 795294 (2008)

Another aspect of the offense of DUI (Driving Under the Influence) involves where and when it is illegal. In that connection, the law makes it illegal to drive under the influence “within this State”. Given this language, Illinois courts have held that DUI is a crime even if committed on private property. People v. Bailey, 243 Ill. App. 3d 871, 612 N.E.2d 960, 184 Ill. Dec. 84, 1993 WL 127621 (1993)


This is a different result for the possible imposition of an automatic suspension (known as a “statutory summary suspension”) for either refusing to take a breath test or testing at or above the legal limit of .08. In those cases, the suspension only applies to private property. People v. Wingren, 167 Ill. App. 3d 313, 521 N.E.2d 130, 118 Ill. Dec. 62, 1988 WL 17284 (1988) There are many nuances to this general rule however.

For instance, even though property may be privately owned, if it is made accessible to the general public, the private property exception would not apply. Such would be the case with a parking lot that is available for rental. People v. Helt, 384 Ill. App. 3d 285, 892 N.E.2d 594, 322 Ill. Dec. 957, 2008 WL 2766159 (2008)

Likewise, if a driver is is on a public highway and then pulls into a private lot for administration of tests, he is subject to the statutory summary suspension laws. People v. Foster, 170 Ill. App. 3d 306, 524 N.E.2d 681, 120 Ill. Dec. 651, 1988 WL 52536 (1988) However, for example, a person who is driving on a private farm is not subject to the statutory summary suspension laws.

Finally, the police need not see you actually “driving”. The law is written to include “actual physical control”. A common myth is that if your keys are not in the ignition and the engine is not running, you cannot be convicted of DUI. However, “actual physical control” is a question of fact. It essentially revolves around the question, could you have gotten to where you are without driving? People v. Kiertowicz, 2013 IL App (1st) 123271, 2013 WL 4516947
Related posts:

Can you get a DUI on a backhoe in Illinois? Illinois DUI Lawyer Blawg, February 22, 2013
Illinois DUI arrests and suspensions on private property Illinois DUI Lawyer Blawg, July 19, 2013

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