The Honorable Justice Nickels delivered the opinion of the court. Justice Freeman, dissenting. Justice McMORROW joins in this dissent.
The opinion of the court was delivered by: Nickels
The Honorable Justice NICKELS delivered the opinion of the court:
Defendant, Ryan M. Watson, was charged by the City of Naperville (City) with driving while under the influence of alcohol in violation of an ordinance (see Naperville Municipal Code § 11-1-1) adopting the provisions of Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 1994)) by reference. Following a jury trial, defendant was found guilty and was sentenced to one year of court supervision and a $250 fine. The appellate court affirmed defendant's conviction (No. 2-94-0911 (unpublished order under Supreme Court Rule 23)), and this court allowed defendant's petition for leave to appeal (155 Ill. 2d R. 315). The issues raised on appeal are: (1) whether defendant was shown to be in "actual physical control" of his vehicle; and (2) whether defendant was entitled to raise, and instruct the jury on, the affirmative defense of necessity. We affirm.
On June 3, 1993, at about 4:30 a.m., two Naperville police officers discovered defendant asleep in his car. The car was parked with its engine running in the parking lot of an apartment complex in Naperville. Defendant was lying across the front seat with his head on the passenger's side. The officers had difficulty rousing defendant, and when they did, defendant appeared disoriented. Defendant told the officers that he was sleeping in his car before driving home because he had had too much to drink. The officers testified that defendant's performance in field sobriety tests indicated to them that he was under the influence of alcohol. At that point defendant was arrested. Later, defendant submitted to a breathalyzer test which indicated an alcohol concentration of 0.18.
Defendant testified that at about 5 p.m. on June 2, 1993, he picked up his girlfriend, Danielle, and drove her to a party at his home in Bolingbrook. At the time, Danielle was living with a friend in Naperville. Defendant had been drinking, and when Danielle was ready to leave the party, he explained to her that he could not drive her home because he had had too much to drink. Instead, Danielle drove defendant's car to her friend's apartment in Naperville and defendant accompanied her as a passenger. They arrived at about 12:30 a.m. Defendant testified that he planned to stay with Danielle at her friend's apartment and that there was "no way" that he would drive back to Bolingbrook. Instead of staying in the apartment, however, defendant remained in his car in the apartment complex's parking lot. Danielle's testimony corroborated defendant's account of these events. The trial court barred the defense from introducing evidence regarding the reason defendant did not stay in the apartment. The defense sought to offer testimony that Danielle's friend's mother would not allow defendant to stay in the apartment.
Defendant additionally testified that it was very cold in the car and at about 2:30 a.m. he went back to the apartment and asked for a coat or a blanket. Defendant was given a coat, and when he returned to his car he turned on the engine so he could run the heater. Defendant then went to sleep in the car. The parties stipulated that defendant did not actually drive his car during the evening of June 2 or the morning of June 3.
Section 11-501(a) of the Illinois Vehicle Code provides in pertinent part that a person shall not "drive or be in actual physical control of any vehicle" while the alcohol concentration of his or her blood or breath is 0.10 or more or the person is under the influence of alcohol. 625 ILCS 5/11-501(a) (West 1994). While it is undisputed that defendant did not drive his vehicle during the relevant time frame, the City prosecuted defendant under the theory that he was in actual physical control of the vehicle. Defendant argues that the evidence conclusively shows that he had no intention of driving and only used the vehicle as stationary shelter where he could "sleep off" the effects of the alcohol he had consumed. Defendant maintains that under these circumstances he was not in "actual physical control" of the vehicle and his conviction must be reversed.
A person need not drive to be in actual physical control of a vehicle, nor is the person's intent to put the car in motion relevant to the determination of actual physical control. See People v. Davis, 205 Ill. App. 3d 431, 435, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1990). The issue of actual physical control is determined on a case-by-case basis giving consideration to factors such as whether the motorist is positioned in the driver's seat of the vehicle, has possession of the ignition key and has the physical capability of starting the engine and moving the vehicle. See Davis, 205 Ill. App. 3d at 435; People v. Heimann, 142 Ill. App. 3d 197, 199, 96 Ill. Dec. 593, 491 N.E.2d 872 (1986). In a number of cases, individuals discovered sleeping in vehicles have been found to be in actual physical control. See Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152; People v. Scapes, 247 Ill. App. 3d 848, 187 Ill. Dec. 645, 617 N.E.2d 1366 (1993); People v. Cummings, 176 Ill. App. 3d 293, 125 Ill. Dec. 514, 530 N.E.2d 672 (1988); People v. Brown, 175 Ill. App. 3d 676, 125 Ill. Dec. 156, 530 N.E.2d 74 (1988); People v. Karjala, 172 Ill. App. 3d 871, 122 Ill. Dec. 533, 526 N.E.2d 926 (1988).
Some controversy has arisen as to how to treat the individual who recognizes that alcohol consumption has impaired his ability to drive and who chooses to "sleep it off" in a parked vehicle. In People v. Guynn, 33 Ill. App. 3d 736, 739, 338 N.E.2d 239 (1975), the court stated, "we do not see anything which would imply a legislative intent or public policy to permit an intoxicated person to 'sleep it off' behind the wheel of a parked car, although that might be preferable to having him drive a car while intoxicated. A person behind the wheel of a parked car can readily move into a position where he can endanger other persons, property or vehicles." Other Illinois decisions have likewise refused to recognize the defense of "sleeping it off." See People v. Brown, 175 Ill. App. 3d 676, 679, 125 Ill. Dec. 156, 530 N.E.2d 74 (1988); People v. Barlow, 163 Ill. App. 3d 281, 287, 114 Ill. Dec. 827, 516 N.E.2d 982 (1987); see also People v. Karjala, 172 Ill. App. 3d 871, 122 Ill. Dec. 533, 526 N.E.2d 926 (1988).
However, dicta in People v. Cummings, 176 Ill. App. 3d 293, 125 Ill. Dec. 514, 530 N.E.2d 672 (1988), advocated a different rule. In Cummings, the defendant's car was found in a ditch with the defendant passed out behind the steering wheel. The defendant testified that he began drinking only after his car had become stuck in the ditch. In the course of its analysis, the Cummings court expressed its concern that "through time and expansion by subsequent court rulings, Guynn may have become counterproductive to society's goal of providing safe highways." Cummings, 176 Ill. App. 3d at 296. The court explained:
"For the intoxicated person caught between using his vehicle for shelter until he is sober or using it to drive home, Guynn encourages him to attempt to quickly drive home, rather than to sleep it off in the car, where he will be a beacon to police.
We believe it would be preferable, and in line with legislative intent and social policy, to read more flexibility into Guynn. In those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily 'sleeping it off' in his vehicle, and that he had no intent of moving the vehicle, trial courts should be allowed to find that the defendant was not in 'actual ...