For anyone 21 or older, the mere act of consuming alcohol to the point of physical impairment is legal. There really is no such thing as being “legally intoxicated”.
What is against the law is operating a motor vehicle with enough alcohol in your bloodstream to be impaired. The offense of Driving Under the Influence (DUI) is defined in Illinois law. 625 ILCS 5/11-501.
Illinois has accepted that if you have a blood alcohol content (BAC) of .08 or higher, you are a sufficient risk to the public safety and should not be driving. It is not necessary for the state to prove that you are in fact impaired.
The mere fact of a .08 or greater BAC is illegal if proven. 625 ILCS 5/11-501(a)(1); People v. Ziltz, 98 Ill. 2d 38, 74 Ill. Dec. 40, 455 N.E.2d 70 (1983). This is known as a “per se” violation.
There is also a separate DUI law under which the state must prove actual impairment. This is the charge the state must sustain if you refuse to provide a blood or breath sample upon request, as provided for by law. 625 ILCS 5/11-501.1
The law itself simply states that you shall not drive or be in actual physical control of any vehicle within the state of Illinois while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) This seemingly simple sentence raises a host of questions.
First, is it illegal to drive drunk in private property? The answer is “yes”. People v. Guynn, 33 Ill. App. 3d 736, 338 N.E.2d 239 (3 Dist. 1975); City of Highland Park v. Block, 48 Ill. App. 3d 241, 6 Ill. Dec. 285, 362 N.E.2d 1107 (2 Dist. 1977). The reason for this is that, unlike the statutory summary suspension (SSS) law, which only applies to what happens on the public highways, the language of the DUI law refers to anywhere “within the state of Illinois” and obviously includes private property.
Another aspect of a DUI involves driving or in “actual physical control” of a motor vehicle. You do not have to be “driving” the vehicle.
Many arrests occur while the driver is “sleeping it off”. Urban legend has it that to prove actual physical control, the police must find you behind the wheel with the keys in the ignition. Not necessarily.
While you are allowed to argue to a jury that you were not in actual physical control by voluntarily “sleeping it off” in your vehicle, you must show that you had no intent of moving the vehicle. People v. Cummings, 176 Ill. App. 3d 293, 125 Ill. Dec. 514, 530 N.E.2d 672 (3 Dist. 1988). On the other hand, you may be found in actual physical control of vehicle despite your presence in the back seat of the vehicle, as the your location in the back seat in no way makes you harmless. People v. Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1 Dist. 1990)
These are questions that the jury must decide. There is no “magic bullet”.
At times, to avoid the issue altogether, people who are intoxicated and get into an accident leave the scene (“hit and run”), which is illegal under 625 ILCS 5/11-401 A conviction for this offense will cause a one year driver’s license revocation and is a felony. However, if the accident caused death or personal injury, the revocation will be for 3 years 625 ILCS 5/6-208 (b)(1)
A non-per se DUI charge requires the state to prove that you were “under the influence” of alcohol. A person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care. Ill. Pattern Jury Instr.-Criminal 23.29 (4th Ed) Once again, this is a question for the jury.
Finally, the offense must occur in a “motor vehicle”. The question is NOT whether you must have a license to operate what you are driving, or whether the vehicle must be plated.
A vehicle, for purposes of the DUI law, includes every devices in, upon or by which a person or property may be transported or drawn upon a highway, except those devices moved by human power, on rails or snowmobiles. 625 ILCS 5/1-217 Bicycles, no. ATV’s yes.