Chicago Criminal Lawyer Blog
t happens more often than you might think in Chicago: someone leaves a bar late at night, realizes they’re too impaired to drive, and chooses to sit in their car to stay warm or wait for a ride. Moments later, police approach, ask questions, and make an arrest for DUI. Under Illinois law, you don’t need to be driving to be charged with driving under the influence. Merely being in the driver’s seat while under the influence can be enough to face a Class A misdemeanor under 625 ILCS 5/11-501. The statute allows for prosecution based on “actual physical control” of a vehicle, even if the car never moves.
This interpretation of the law means you could be criminally charged for trying to make a safer decision. It’s a concept that confuses many people, especially when their car was parked legally and never driven. The State doesn’t need a video of you driving—it needs to prove you had the ability and opportunity to do so. The location of the keys, your position inside the vehicle, and whether the engine was running all become part of the State’s argument.
Legal Proceedings and Police Evidence in Non-Driving DUI Arrests
Once law enforcement determines they suspect you of DUI, the typical process follows: arrest, transport to the station, field sobriety testing or chemical testing, and issuance of a notice of Statutory Summary Suspension. Your license may be suspended just for failing or refusing a test, regardless of whether you’re ultimately convicted.
Even if you chose to sleep in your car with the engine off, officers may claim they found you in a position to operate the vehicle. This is particularly common in neighborhoods like River North, Wicker Park, and Bridgeport, where people often park temporarily while waiting for a ride.
Law enforcement builds these cases using circumstantial evidence. You might not realize that your keys in your pocket, or your seat reclined in the front, can be used as evidence of control. Prosecutors are trained to extract these details and present them as proof of risk to public safety.
Punishment if Convicted Under Actual Physical Control Theory
If you are convicted of a first-time DUI for being in the driver’s seat while intoxicated, even without driving, the penalties are no different from those handed down to people stopped on the highway. A Class A misdemeanor conviction under 625 ILCS 5/11-501 can carry:
- Up to one year in county jail
- Up to $2,500 in fines
- Loss of driving privileges
- Mandatory completion of a drug/alcohol evaluation
- Attendance in alcohol awareness or education programs
- Supervision, probation, or community service
If aggravating factors exist—such as prior DUI convictions, transporting a minor, or a BAC of 0.16 or higher—the charge may be upgraded to an Aggravated DUI, which can result in a felony conviction. A felony DUI can carry multi-year prison terms and leave a lasting stain on your record, affecting your ability to work, travel, and even find housing.
In one recent case from the Near West Side, we defended a woman who fell asleep in the driver’s seat while waiting for her Uber. The vehicle was off, and her keys were inside her purse on the passenger seat. Although officers arrested her for DUI, we introduced testimony showing her phone records and text messages requesting a ride home. After reviewing all the evidence, the court dismissed the charge, citing lack of actual control and no intent to drive.
Types of Evidence Used in These Arrests
Officers investigating these cases don’t rely on driving behavior. Instead, they look at indicators that suggest readiness to drive. Some of the evidence they collect includes:
- Location of the keys (in ignition, in lap, nearby)
- Whether the engine was running or warm
- Officer observations (odor of alcohol, slurred speech, impaired movement)
- Field sobriety test performance
- Breathalyzer or chemical test results
- Statements made by the individual, especially any mention of intent to drive
- Surveillance footage or dash cam video
Our firm carefully examines every piece of evidence for inconsistencies, constitutional violations, or procedural errors. We routinely find discrepancies in the police narrative or issues with how field sobriety tests were administered.
Legal Defenses Available When You Weren’t Driving
Being charged with DUI doesn’t mean you are guilty. There are numerous defenses to allegations based on physical control. Each case presents its own set of facts, but here are common strategies we use:
You Were Not in Control of the Vehicle: If the car was off, the keys were out of reach, and there was no reasonable way to operate it, the prosecution may have difficulty proving control.
No Intent to Operate: Intent matters. If you were parked legally, waiting for someone else, or sleeping it off responsibly, those details can help cast doubt on the charge.
Improper Arrest or Stop: Officers must have a legal basis to approach and detain you. If they lacked reasonable suspicion or probable cause, any evidence they gather may be suppressed.
Invalid Chemical Testing: Breathalyzers and blood tests must be conducted properly. Failure to follow protocols or preserve evidence correctly can make the results unreliable.
Mechanical Inoperability: If your car couldn’t be started due to mechanical problems, the argument for physical control collapses.
Why Legal Representation Should Begin Immediately
A skilled DUI defense lawyer can have a significant impact on your outcome. From contesting your license suspension to preparing a trial defense, early legal representation is critical. In addition to building a strong defense, an attorney can:
- Challenge the basis of the initial encounter
- File motions to suppress key evidence
- Obtain surveillance or witness evidence quickly
- Prevent you from making statements that harm your case
- Represent you at administrative hearings to restore your license
Many people charged under this theory assume that they can explain their situation to the judge. Unfortunately, that often leads to admissions that strengthen the prosecution’s case.
Choosing the Right DUI Lawyer in the Chicago Area
Hiring a DUI lawyer means choosing someone with a real understanding of how physical control cases are prosecuted. You should hire someone who regularly handles DUI cases, knows the judges and prosecutors in Cook, DuPage, Will, and Lake Counties, and is prepared to take your case to trial if needed.
When you meet with a potential attorney, consider asking:
- Have you defended DUI cases involving no actual driving?
- What are the most common outcomes in situations like mine?
- Do you see any immediate defenses based on the facts I shared?
- Will you help challenge my license suspension as well?
- How does your fee structure work?
The Law Offices of David L. Freidberg has decades of experience successfully defending clients in these exact situations.
Why You Need a Defense Lawyer If You Were Just Sitting in the Car
You might think that because you didn’t drive, you’ll be able to explain yourself and have the case dismissed. But in Illinois, the law is not that simple. Police and prosecutors are trained to stretch the definition of control, and without legal advocacy, you could end up with a criminal record.
The consequences of conviction are long-lasting. Whether you’re trying to keep your license, your job, or your freedom, hiring a defense attorney is the most important step you can take. We understand how to present your side of the story, challenge the assumptions made by officers, and use the law to your advantage.
Call The Law Offices of David L. Freidberg Today
If you’ve been charged with DUI for being in the driver’s seat while intoxicated, contact The Law Offices of David L. Freidberg right away. We offer a free consultation, and we are available 24/7.
If you were arrested in Chicago for DUI, protect your future by contacting The Law Offices of David L. Freidberg. We have decades of experience handling DUI cases in Illinois. Our firm is available 24/7 to provide the legal defense you deserve.
Contact us today at (312) 560-7100 or toll-free at (800) 803-1442 for a free consultation. We’re available 24/7 to serve clients throughout Illinois, Cook County, DuPage County, Will County, and Lake County.
