Many Illinois drivers believe they’re safe from driving under the influence (DUI) charges as long as they’re on private property, such as their own driveway, a parking lot, or even a friend’s backyard.
Illinois law makes no distinction between impaired driving on the public streets and impaired driving on private property when it comes to a DUI charge.
If you operate a motorized vehicle with a blood alcohol content (BAC) of .08 or higher, or are impaired by drugs or alcohol, you can be charged with driving under the influence. Being on your own property or on a private road is not a defense against the charge in Illinois.
So, what are your options if you’re charged with DUI on private property? Our Chicago DUI lawyers explain Illinois DUI laws, the various potential offenses available, and the potential penalties.
Where Illinois DUI Laws Are Enforced
As we’ve stated, Illinois makes no distinction between private and public property for the purposes of arresting a driver for DUI. Arrests can be made in all sorts of locations, including:
- Parking lots at bars, stadiums, arenas, and any other commercial location
- Ranch properties
- Apartment complexes
- Golf courses
- Anywhere people ride all-terrain vehicles (ATVs), motorcycles, or other vehicles “off-road.”
You don’t even necessarily need to have a driver’s license to be arrested for DUI. Driving on a public road without a valid license is a different matter entirely, but you don’t legally need a driver’s license to operate an ATV or golf cart. Still, Illinois law defines golf carts and ATVs as motorized vehicles, so anyone caught operating one while impaired by drugs and/or alcohol may be arrested for driving under the influence.
The Different Aspects of a DUI Charge in Illinois
When you’re arrested for DUI in Illinois, two different procedures begin. The first is the one most drivers are primarily concerned with, and for good reason: the criminal DUI charge. We’ll return to that in a moment.
The second component is an administrative penalty called a statutory summary suspension, issued by the Illinois Secretary of State (ILSOS). This applies when you refuse chemical testing at the time of your DUI arrest, or when you consent but test positive (.08 BAC or higher) for drug or alcohol intoxication.
Your statutory summary suspension length will vary depending on whether you consented or refused, and your history. For a first offense, your license will be suspended for:
- Six months if you consent and test positive
- One year if you refuse chemical testing.
The Illinois Secretary of State can suspend a driver’s license based on a concept called implied consent. In essence, by holding a license and driving on the road, you implicitly give your permission for law enforcement to take a blood, breath, or urine test to determine whether you are impaired after a DUI arrest. If you withdraw that consent by refusing or you fail the test, the ILSOS can suspend your driving privileges.
This penalty does not kick in immediately, and crucially, if you act fast, an attorney may be able to overturn your suspension before you lose your driving privileges.
Now, while being on private property will not prevent you from being charged with (or even convicted of) DUI, it can play in your favor when contesting your license suspension.
Here’s why: The implied consent law only applies if you were driving upon the public highways of Illinois.
The Illinois Vehicle Code (625 ILCS 5/11-501.1(a)) specifically states:
“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent… to a chemical test or tests of blood, breath, or urine.”
So, if you were on private property when you were arrested, an Illinois DUI attorney can argue that because you weren’t on a public highway, the statutory summary suspension does not apply.
The Illinois Vehicle Code also provides guidance on what is considered a public highway. Courts use this definition to determine whether a parking lot, driveway, or road qualifies as public or private property.
As stated in the legislation (625 ILCS 5/1-126), a public highway is:
“The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.”
Based on this definition, a shopping mall parking lot open to the public can be classified as a public roadway, whereas a gated private driveway typically won’t be.
But, even if an attorney gets your statutory summary suspension overturned, there is still the criminal charge to contend with.
What Are the Defenses Against a DUI Charge?
Unlike in some states, you can’t defend yourself against an Illinois DUI charge by proving that you were on private property, in an isolated setting, and that the public had no access to the location. The only defenses you may use are the same defenses that may be used in any DUI case.
However, depending on your circumstances, the fact that you were arrested on private property can support your case.
To understand why, we need to look in more detail at how the law defines DUI in Illinois.
Under 625 ILCS 5/11-501, it’s unlawful for any person to drive or be in actual physical control of a vehicle while under the influence of alcohol or drugs. You might notice that the wording is similar to the implied consent law, but there is notably no requirement for the offense to be committed on public roads.
The key concept here is “actual physical control”, which brings us to our first potential defense against DUI on private property.
Challenging Whether You Were in Actual Physical Control of Your Vehicle
You might be arrested for DUI without your vehicle being in motion, or even without the keys being in the ignition. Being in a stationary car does not mean you can automatically claim you weren’t in actual physical control of it. Illinois courts interpret actual physical control broadly, and prosecutors can argue that you could have, at any point, grabbed your keys and started to drive. That’s why drivers have been arrested and convicted for DUI while sleeping in a parked car or warming up a vehicle for a spouse, despite having no intention to drive themselves.
But this is where the specifics of your case matter. If you were arrested for DUI but your keys were in the truck or outside of your vehicle, or if you were in the back seat with boxes and belongings on the driver’s seat to restrict access, prosecutors may have a harder time proving you were in physical control of the vehicle compared to if you were sitting in the front seat with your keys within reach. Of course, prosecutors could still argue you could move items or retrieve your keys if you had the motivation, but broadly speaking, the more steps you can take to make driving impossible or very difficult, the stronger your defense will likely be.
Challenging the Reason for the Stop
Police officers must have reasonable suspicion that a crime is being committed before stopping a driver. This may be an indication of driving under the influence, such as weaving erratically, or it might be an unrelated violation like driving with a busted headlight. Once the police have pulled over the driver, they may notice slurred speech and an odor of alcohol, which may lead to an investigation for DUI.
However, if the police had no reasonable suspicion and pulled over a driver randomly or because of some other bias, any evidence gathered during and after the stop may be inadmissible, even if that evidence points to the driver being intoxicated.
The same rules apply to drivers on private property: the police must have a reasonable belief that you are violating the law. If you are within the curtilage of your home (for example, in a fenced backyard, on a gated drive, or in an enclosed garage), the police must also have a warrant to enter onto your property, unless you give them consent or there are exigent circumstances.
If the police do not have a warrant and they approach you on your private property and arrest you for DUI, any evidence gathered may be inadmissible under the Fourth Amendment.
Questioning Evidence and Procedure
One of the most common defenses to DUI, whether on public or private property, is to argue against the reliability of evidence or how it was collected.
Officers will often rely on field sobriety tests to support a DUI arrest, such as the Walk and Turn, designed to gauge balance and the ability to follow instructions. However, field sobriety tests can be unreliable, especially when they’re conducted on uneven surfaces like driveways. There are also many alternative, normal explanations for a “positive” result. Medical conditions, fatigue, and nervousness can all cause poor performance in field sobriety tests, even when a driver is stone-cold sober.
An experienced DUI attorney can challenge the validity and reliability of these tests and their results, especially if there’s little other evidence supporting the State’s case.
If prosecutors rely on a positive breathalyzer result to prove your DUI, a defense lawyer can also investigate whether proper procedures were followed. Breathalyzers must be calibrated and maintained, and the exam must be administered by an officer certified and trained to use the device.
If there are procedural errors in your case, an Illinois DUI lawyer can find them and use them as grounds for arguing to suppress the evidence in court.
When Should You Contact a DUI Defense Attorney?
If you’re charged anywhere in or near the Chicago area with driving under the influence on either private or public property, your first step should be to contact a Chicago DUI attorney. Between pending court dates and the threat of a license suspension taking effect in weeks, the sooner you act, the better.
A lawyer can help you hold onto your driving privileges so that you’re not left unable to drive to work and other commitments, and investigate your charge and the evidence against you to build the right defense for you.
DUI charges carry hefty potential consequences. First and second offenses are charged as misdemeanors. If aggravating circumstances occur, such as operating a school bus, causing an accident that results in serious harm, or driving without insurance, the charge becomes a felony, punishable with a lengthy prison term and license suspension.
Jail time is rare for a first offense, but that doesn’t mean you should take a DUI any less seriously. But an attorney can explain your options. If the evidence against you is conclusive, your lawyer may be able to negotiate a plea bargain on a reduced charge or keep the conviction off your record by arranging court supervision.
What is most important is that you don’t try to do this alone.
If you’ve been arrested for DUI on private property in Cook, DuPage, Kane, or Lake County, don’t wait to get help. Contact Driver Defense Team today for a free consultation. We’ll review your case, explain your options, and develop a customized GamePlan to get you the best possible outcome.
