Do You Have to Drive to be Charged With Drunk Driving?

Falling Asleep Behind the wheel
Just recently, Chicago Police Department Superintendent Eddie Johnson announced his retirement, citing a number of considerations including health concerns and a desire to spend more time with his family. At the time that he made that announcement however, Chicago’s highest-ranking police officer had another news-worthy matter pending, although one which he has denied influenced his ultimate decision to step down. That was the October report that he had been found asleep behind the wheel of his car and that by some accounts, he allegedly admitted that he had consumed a couple of drinks earlier in the evening. According to the top-cop Chicago Police officer, all that happened was that he had recently changed his medication and felt light-headed, so he pulled over just a few blocks from his home. Then according to police on the scene, a breathalyzer was not administered as there were no obvious signs of alcohol impairment. Afterwards, and in the interest of complete transparency, Johnson himself asked for an internal investigation of the occurrence by the CPD’s Public Integrity Unit. That investigation is still open and pending at this time.

How Can a Sleeping Person be a Drunk Driver?

Although there’s no proof that the Chicago Police Superintendent consumed any alcohol or admitted to drinking alcohol that evening, when people hear about similar circumstances, they usually say: “So even if it’s true that a person is caught asleep intoxicated in a car, what’s the big deal if they’re not actually driving?”. After all, it’s called Drunk Driving, isn’t it? Or as the crime is actually referred to in the Illinois Vehicle Code: “Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof”, right?
Well, not so fast. Although it’s obviously true that a person can be convicted of driving while intoxicated, it also happens to be true that a person can sometimes be found guilty of this criminal charge even without any proof that he or she ever even drove an automobile in the first place. — Or even if all agree that the person was actually asleep! How is that even possible you ask?

What is “Actual Physical Control”?

It’s because under the laws of Illinois, the DUI statute makes it illegal to be intoxicated when “in actual physical control” of a vehicle. This concept of “actual physical control” basically means that when a person is in a position to drive the car at a moment’s notice, that’s good enough to get you in trouble. So even if a person is asleep, if they are in a position to quickly start driving the car should they wake up, a DUI charge may still follow.
That certainly doesn’t seem fair you may say. But the reason the law has evolved as it has is based on the premise that the police shouldn’t have to hide in the bushes and wait for a drunk driver to start their car and begin driving, because obviously, bad things may quickly happen. – And they certainly shouldn’t have to wait around for the person to eventually wake up. So in court, if a Judge can be convinced that the driver might have started driving at any moment, under this idea of “actual physical control”, that may be enough.

What if I Was Just Going to “Sleep it Off”?

Say a person is at a bar and it’s closing time. The bartender announces “last call” and soon thereafter, the lights come up and the bouncers are escorting all the stragglers to the door. Time to go. Say that person, although intoxicated, is wise enough to realize that (let’s say it’s a “he”) is in no position to drive. So rather than get behind the wheel, he gets into the back seat, covers up with a blanket and starts the car to just turn on the heat (or doesn’t even start the car at all). He figures that not only is he not actually “driving”, but he’s not even on a street at all; he’s in a private gravel lot behind a bar. So, how could this possibly be against the law? If a police officer found him and saw what he was doing, he might even congratulate him for his wise decision to not drive. Smart, right? Not necessarily.

Find a Legal Team That Knows How to Best Protect You

That’s because unfortunately, logic and the law are not always close companions. So, if you’re charged with a DUI when you were not even driving, it’s imperative that you hire an experienced criminal/traffic attorneys that knows the law and knows how to properly apply it. Since 1990, Sexner & Associates LLC has been helping those charged with DUIs and other criminal charges. Contract us today at 800-996-4824 or Contact Us online.

This blog is available for informational purposes only and is not considered legal advice on any subject matter. The blog should not be used as a substitute for legal advice from a licensed professional attorney, and readers are urged to consult their own legal counsel on specific legal questions.

Written by Mitchell S. Sexner Last Updated : December 30, 2021