Can you be given a DUI if you were not driving?

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Can you be given a DUI if you were not driving?

My 17 year-old son was staying at a friends house and his car was parked behind the house in a fenced in area. He had been drinking and was sitting in the passenger seat. The friend had parked the car there and went inside. He had not been drinking and told the police that it was him that was driving the car. It was parked on private property but my son was given the DUI and his car was impounded. He was not driving the car nor did he intend to. The reason for the police going there was the car looked suspicious. Should He have a DUI attorney? In Warren County, IL.

Asked on October 30, 2010 under Criminal Law, Illinois

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

In order to get a DUI, you must be driving or in actual physical control of a motor vehicle. Driving is easy to understand, either you are in motion or your not.  Actual physical control of a motor vehicle applies when your vehicle is parked.  This can be if your just sitting in your car with engine running trying to stay warm until your ride comes.  It can be pulling of the road, shutting the car off but leaving the keys in the ignition.  Prosecutors have even claimed that someone has had actual physical control when the engine was off, keys were out of the ignition and on the passenger seat (you didn't indicate if the keys were still in the car).

All that having been said, this does not mean that he doesn't have legal grounds on which to fight the charge.  Particularly based on the facts presented. A skilled DUI attorney can present  defenses in his case which could result in getting the charge reduced or dismissed.  Right now he needs to consult with a DUI attorney in the area where he must appear in court.  They will have contacts within the local court that they may be able utilize to his advantage.  Since a DUI triggers both civil and criminal cases, he really should have legal representation.


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