How prosecutors prove DUI in Illinois courts

by Sami Azhari on November 21, 2010

Proof of Intoxication | Breathalyzer Machine | Illinois DUI Trial

Driving under the influence is a criminal offense in Illinois. It is subject to the same rules of criminal procedure and evidence as any other charge, including first degree murder.

The defendant is protected by the United States Constitution, which provides the right to a jury of 12 people and the right to confront one’s accuser in court (eg, the Confrontation Clause).

During a trial for DUI, the defendant is presumed innocent. The prosecution has the burden of proof. The evidence at trial must overcome the presumption of innocence.

The prosecution must prove the elements of DUI beyond a reasonable doubt:

  1. Driving or actual physical control
  2. of any vehicle
  3. anywhere in the state
  4. while under the influence of alcohol and/or drugs

Driving or Actual Physical Control

Contrary to what many people believe, the prosecution does not have to prove that the defendant was actually driving in order to get a guilty verdict in a DUI. The evidence only needs to show that the defendant had actual physical control of the vehicle.

Actual physical control means the defendant, more or less, could have driven the vehicle.

If the police officer were to testify that he saw the defendant driving, that would be considered direct evidence. But the police do not have to observe the defendant driving.

The prosecution can prove its case with circumstantial evidence, which is evidence that can be used to infer the defendant committed the crime.

The judge or jury can take into consideration the following factors (and more) in deciding whether the defendant had actual physical control:

  1. The keys were in the ignition.
  2. The defendant possessed the keys (inside pants pocket or purse).
  3. The defendant was sitting in the driver’s seat.
  4. Although the defendant was found outside the vehicle, there was no one else around.
  5. There were tire tracks across grass or mud leading to the vehicle.
  6. The police were responding to a 911 call of an accident and found a wrecked vehicle and the defendant was nearby.
  7. The vehicle was registered to the defendant.
  8. The defendant’s purse, wallet, or identification were found inside the vehicle (on the floor underneath the driver’s seat).
  9. The engine was running.
  10. The hood of the vehicle was warm, indicating that it had just recently been driven.
  11. Someone else saw the defendant driving.
  12. The defendant had injuries that were consistent with being the driver in an accident.

Any of the above can be used to infer that the defendant was driving, or, in actual physical control of the vehicle. The question of guilt depends on the facts.

Of Any Vehicle

A vehicle is anything used to transport a person that is not powered by human power. The definition of a vehicle under Illinois law is the following:

Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3‑101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.

See 625 ILCS 5/1-217.

According to this definition, a vehicle can be almost anything. A bicycle, on the other hand, is not a vehicle, because it is moved by human power.

The fact that a vehicle is inoperable is not a defense. More than one person has been arrested for DUI while going inside a vehicle parked in the driveway, looking for personal belongings, despite the fact that the vehicle’s engine will not start.

Regardless of whether the engine will not start, all tires are flat, the axle is broken, the fuel or gas tank is empty, or the wheels have been removed, any car, truck, or other automobile is still legally a vehicle in Illinois and can be the basis of a DUI charge.

The only way it ceases to be a vehicle is if it is issued a junk certificate by the Secretary of State.

For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.

See 625 ILCS 5/1-217.

Anywhere in the State

The second to last element of a DUI charge is that the vehicle was driven, or the defendant had actual physical control of the vehicle, anywhere in the state.

First, this element is a jurisdictional issue. Illinois courts do not have jurisdiction to find people guilty of DUI where the evidence shows they were driving in another state such as Wisconsin or Indiana. The court’s jurisdiction in criminal cases extends only to the border.

Second, this element means that driving or having actual physical control anywhere can subject a person to criminal liability.

It is not a defense that the person was driving on private property, such as a driveway or parking lot. The prosecution does not have to prove it was public property. The prosecution also does not have to prove it was the legal definition of a highway.

Rather, a person can be guilty of DUI driving off road (in the forest, woods or a field), on a lawn or park, or on a street. It can be anywhere in the state.

While Under the Influence of Alcohol and/or Drugs

The offense of driving under the influence comes from the Illinois Vehicle Code at 625 ILCS 5/11-501, which says it is illegal to drive under the influence or alcohol, drugs, or any combination thereof.

A person is guilty of DUI if he has:

  • An alcohol concentration in his blood or breath of 0.08 or more. 625 ILCS 5/11-501(a)(1).
  • Any amount of cannabis, a controlled substance, or methamphetamine in his blood, breath or urine. 625 ILCS 5/11-501(a)(6).

A person is also guilty of DUI where he is:

  • Under the influence or alcohol. 625 ILCS 5/11-501(a)(2).
  • Under the influence of an intoxicating compound. 625 ILCS 5/11-501(a)(3).
  • Under the influence of a drug or combination of drugs. 625 ILCS 5/11-501(a)(4).
  • Under the combined influence or alcohol, drugs, and intoxicating compounds. 625 ILCS 5/11-501(a)(5).

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