It happens more often than people think. You leave a bar or friend’s house in Chicago, realize you shouldn’t be driving, and decide to sit in your car for a while. Maybe you’re charging your phone or waiting for a ride. The engine might be off. You’re trying to make a smart decision. Then, police show up and arrest you for DUI.

But how can they arrest you if you weren’t even driving?

As a Chicago DUI lawyer who’s handled thousands of cases throughout Cook County and the surrounding counties, I’ve seen countless people charged in these exact situations. Whether you were in Logan Square, Bridgeport, South Shore, or outside city limits in places like Oak Lawn or Cicero, the law applies statewide. And unfortunately, it can be applied unfairly if you don’t have the right legal representation.

Let’s explore how Illinois law handles these cases, what your legal options are, and why calling an experienced Chicago DUI defense attorney immediately after your arrest could make the difference between a conviction and a clean record.

You Don’t Have to Be Driving to Be Charged With DUI in Illinois

Illinois law does not require law enforcement to witness actual driving to charge someone with driving under the influence. Under 625 ILCS 5/11-501, the law prohibits operating or being in actual physical control of a motor vehicle while under the influence of alcohol, drugs, or a combination of both.

That “actual physical control” language is what makes these cases complicated. The courts in Illinois have interpreted that phrase to mean you can be charged if:

• You’re in the driver’s seat
• You have access to the keys
• You’re capable of starting or moving the vehicle
• The vehicle is operable, even if not running
• There’s no barrier to you driving away

That means if you were seated behind the wheel in a parked car—even if it was off—and had the keys within reach, police can make an arrest and prosecutors may pursue charges.

They don’t have to prove you intended to drive. They only need to show that you had the ability and control.

How DUI Arrests Without Driving Typically Unfold in the Chicago Area

Most of these arrests happen during late-night hours. A person might be resting in their car after a night out. Sometimes they’re waiting for a rideshare. Other times, they’ve pulled over to avoid putting others in danger. But when police see someone in a parked vehicle and suspect alcohol is involved, they may treat the situation as a DUI investigation.

Here’s a scenario that often plays out:

• Police approach a vehicle parked near a bar or public street in West Loop or Lakeview.
• They observe the person slumped in the driver’s seat, maybe sleeping or looking dazed.
• They ask questions, and based on the smell of alcohol or slurred speech, they begin a DUI investigation.
• They ask for field sobriety tests or a breathalyzer.
• If the person admits they had been drinking—or worse, says they were planning to drive—the officer places them under arrest.

From there, the case is passed to the State’s Attorney, and criminal charges are filed.

Even though no one saw the car move, the State may argue that the driver posed a potential risk to public safety. That’s where legal representation becomes crucial.

Example Case: Sleeping It Off in a Car in Humboldt Park

One fictional—but realistic—example is a man who left a party in Humboldt Park and decided to sit in his car to wait for a friend to pick him up. He sat in the front seat, reclined, and had the keys in his hoodie pocket. The car was legally parked and never started. A passing patrol officer knocked on the window, saw signs of impairment, and arrested him for DUI.

At first glance, it looked like an open-and-shut case. But we dug deeper. We found surveillance footage showing the vehicle parked for hours. The breathalyzer machine used was overdue for calibration, and the field sobriety tests were conducted on uneven pavement in freezing conditions.

After filing motions to challenge the stop and suppression of unreliable evidence, the case was ultimately dismissed before trial. This outcome was possible because we challenged the underlying assumption that sitting in a car automatically equals a DUI offense.

Misdemeanor vs. Felony DUI: What You’re Facing in Illinois

A first or second DUI is usually a Class A misdemeanor in Illinois, punishable by:

• Up to 364 days in jail
• Fines up to $2,500
• Mandatory alcohol education or treatment
• Community service or victim impact panel attendance
• Suspension of driving privileges

However, under 625 ILCS 5/11-501(d), DUI becomes a felony (Aggravated DUI) if:

• You’ve had two or more prior DUI convictions
• You were driving on a suspended license
• There was a child passenger under 16
• The incident resulted in serious bodily injury or death

Felony DUI can range from Class 4 (1–3 years in prison) to Class 2 (3–7 years) or more for repeat offenses. Convicted felons face lifelong consequences, including difficulty finding employment, housing, or obtaining professional licenses.

Evidence Prosecutors Use in Parked-Car DUI Cases

Because no one saw you driving, the case will rest on indirect evidence. This can include:

• Location of the driver in the vehicle (driver’s seat vs. back seat)
• Whether the engine was running
• Whether the keys were in the ignition or within easy reach
• Physical signs of intoxication (slurred speech, odor of alcohol)
• Field sobriety tests and breath test results
• Statements made to officers (such as “I was just about to leave”)
• Weather conditions (e.g., was the car on for warmth?)

The quality of this evidence is everything. In many cases, the prosecution’s argument rests entirely on subjective observations by the officer. If those observations can be contradicted by video, witness statements, or bodycam footage, the case becomes much weaker.

The Importance of Hiring a Chicago DUI Defense Attorney

Too many people assume that DUI cases—especially parked-car cases—aren’t worth fighting. But a conviction can affect your record forever. These cases are defensible, but only with the right legal strategy.

Here’s what an experienced attorney brings to the table:

• Immediate review of the evidence and your statement
• Filing motions to suppress statements or test results
• Evaluating whether police had legal grounds to detain you
• Challenging the reliability of field sobriety or chemical tests
• Identifying weaknesses in the physical control argument
• Negotiating for reductions, alternative sentencing, or full dismissal

At The Law Offices of David L. Freidberg, I approach each case as though it’s going to trial. That forces prosecutors to prove every element—and gives us leverage to negotiate from a position of strength.

Legal Defenses in Illinois for DUI Without Driving

There are several effective defenses we may raise in court, including:

• You were not in control of the vehicle: If you were in the back seat or the keys were hidden or far from reach, control cannot be established.
• Lack of probable cause for the initial stop: Police cannot detain or question you without legal justification.
• Improper test administration: Field tests done improperly or breath tests with expired calibration logs can be challenged.
• Medical conditions or fatigue: These can mimic signs of intoxication.
• Necessity defense: In rare situations, you may have had to enter the vehicle for safety reasons, such as escaping harm or severe weather.

Every defense must be backed by evidence and legal argument. That’s where an experienced attorney makes all the difference.

Illinois DUI FAQs: DUI Charges Without Observed Driving

Can I be charged if I was in the passenger seat instead of the driver’s seat?
It’s much harder for the State to prove physical control if you weren’t behind the wheel. However, if the prosecution believes you had access to the keys and could move to the driver’s seat, they may still pursue charges.

What if I was just charging my phone in the car?
Intent does not always matter. If you’re in the driver’s seat and the keys are present, prosecutors may argue that you could have driven at any time, which satisfies the legal standard.

Does it matter where the car was parked?
Yes. If you were parked in a private driveway or off a public roadway, your defense may be stronger. But prosecutors still pursue DUI charges even in private lots, especially if the vehicle is accessible.

Can I get supervision if I’ve never been arrested before?
In many first-time DUI cases, court supervision is possible. It prevents a conviction from going on your record. However, it still has conditions and penalties, so a strong defense is still necessary.

What should I say to police if I’m in my car and they approach me?
You are not required to answer questions beyond providing ID. You should never admit to drinking or driving. Politely decline to answer questions and request to speak to an attorney.

Will a DUI show up on a background check in Illinois?
Yes. A conviction—misdemeanor or felony—will remain on your criminal record permanently unless the charge is dismissed or you receive court supervision and meet all conditions.

Can these charges be fought successfully?
Absolutely. Many DUI charges involving parked vehicles are dropped or reduced when challenged by a capable defense attorney who understands how to attack the prosecution’s case.

Protect Yourself With Experienced Legal Representation

DUI charges are always serious—even if you were never seen driving. The law in Illinois allows police and prosecutors to pursue convictions based on control, not movement. If you’re accused of DUI under these circumstances, the consequences can be just as damaging as any other DUI arrest.

Don’t try to handle this alone. At The Law Offices of David L. Freidberg, I defend clients throughout Chicago and the surrounding counties—including Cook County, DuPage County, Will County, and Lake County. My goal is always to beat the charge, reduce the penalties, and protect your future.

When You Need a Fighter, Call Us!

Whether you’re charged in downtown Chicago, Skokie, Maywood, Bridgeview, or Rolling Meadows, we’re ready. We appear regularly in courtrooms throughout Cook, DuPage, Will, and Lake Counties. And we don’t treat aggravated speeding as just another moving violation.

If you were arrested in Chicago, 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.