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DUI: What Is Actual Physical Control?

| Apr 5, 2015 | DUI & Traffic Defense |

Every state defines “drunk driving” differently in their criminal and/or traffic code. Some states charge “drunk driving” as Driving Under the Influence of Drugs or Alcohol (DUI) and other states charge drunk driving as Operating a Vehicle Under the Influence of Alcohol (OVI).

In Ohio, a person charged with “drunk driving” will likely be charged with Operating a Vehicle Under the Influence of Alcohol (OVI) in violation of Ohio Revised Code (ORC) Section 4511.19 (A)(1)(a). The Ohio General Assembly chose to use the broader term than drive. The ORC defines “operate” as to cause or have caused movement of a vehicle.

However, if that person never “causes movement” of his vehicle, he will likely be charged with a different alcohol related offense: Having Physical Control of a Vehicle While Under the Influence in violation ORC 4511.194. “Physical control” means being in the driver’s position of the front seat of a vehicle or in the driver’s position of a streetcar or trackless trolley and having possession of the vehicle’s, streetcar’s, or trackless trolley’s ignition key or other ignition device. This charge is considered a non-moving violation and no points will be assessed to the defendant’s Ohio license.

In Illinois, a person charged with “drunk driving” will likely be charged Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof in violation of 625 ILCS 5/11-501. The statute provides:

A person shall not drive or be in actual physical control of any vehicle within this State while: the alcohol concentration in the person’s blood or breath is 0.08 or more based on the    definition of blood and breath units in Section 11-501.2;

Importantly, unlike Ohio, Illinois does not have a safe harbor provision and a defendant who drunk and sleeping in his vehicle will likely be charged with DUI. A judge or jury will weigh the following factors in determining if a person was in “actual physical control:” whether the defendant has the keys, whether the keys are in ignition, whether the defendant is in the driver’s seat, whether he or she owns the vehicle, where the vehicle is located, etc. See, e.g., People v Brown, 175 Ill App 3d 676, 530 NE2d 74 (2d D 1998).

To read the Illinois DUI Statute check out: http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501