NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 80315--Agenda 23--September 1996.
THE CITY OF NAPERVILLE, Appellee, v. RYAN M. WATSON, Appellant.
Opinion filed February 20, 1997.
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defendant's conviction (No. 2--94--0911 (unpublished order under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.
BACKGROUND
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.
ANALYSIS
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 (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 (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;
People v. Scapes, 247 Ill. App. 3d 848 (1993); People v. Cummings,
176 Ill. App. 3d 293 (1988); People v. Brown, 175 Ill. App. 3d 676
(1988); People v. Karjala, 172 Ill. App. 3d 871 (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 (1975), the court stated,
"[w]e 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
(1988); People v. Barlow, 163 Ill. App. 3d 281, 287 (1987); see
also People v. Karjala, 172 Ill. App. 3d 871 (1988).
However, dicta in People v. Cummings, 176 Ill. App. 3d 293
(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 physical control' of the vehicle for
purposes of section 11--501." Cummings, 176 Ill. App. 3d
at 296-97.
See also People v. Barlow, 163 Ill. App. 3d 281, 288 (1987) (Karns,
P.J., dissenting) ("contrary to the statement in [Guynn], I see
nothing wrong with defendant getting into his truck to `sleep it
off' ").
Nonetheless the Cummings court affirmed the defendant's
conviction, concluding that the case was not one of the "rare
instances" it had described, "but instead involve[d] the frequently
found circumstance of an intoxicated defendant sleeping in his car
after driving it into a ditch." Cummings, 176 Ill. App. 3d at 297.
The court noted that the trier of fact was not obligated to credit
the defendant's "good-citizen tale" of how he came to be drunk in
the ditch. Cummings, 176 Ill. App. 3d at 297.
Relying on Cummings, defendant urges us to hold that
intoxicated individuals who voluntarily choose to sleep off the
effects of alcohol in a parked vehicle may do so without fear of
prosecution. We are unpersuaded by Cummings' reasoning and
defendant's argument. The term "actual physical control" in section
11--501 is unqualified by any language suggesting that the
accused's purpose in occupying a vehicle is germane to criminal
responsibility. Courts in other jurisdictions have emphasized the
preventive nature of statutes proscribing actual physical control
by those under the influence of alcohol. It has been stated that
the purpose of such statutes is to discourage intoxicated persons
from entering motor vehicles except as passengers. In re Suspension
of the Driver's License of Vogt, 117 Idaho 545, 546, 789 P.2d 1136,
1137 (1990); Buck v. North Dakota State Highway Commissioner, 425
N.W.2d 370, 373 (N.D. 1988). "An intoxicated individual who gets
into his vehicle to sleep poses a threat of immediate operation of
his vehicle at any time while still intoxicated." Buck, 425 N.W.2d
at 373; see also Stevenson v. City of Falls Church, 243 Va. 434,
440, 416 S.E.2d 435, 439 (1992) (Compton, J., dissenting, joined by
Carrico and Hassell, JJ.) ("Ordinary experience tells us that one
in a drunken stupor in the driver's seat of a vehicle is likely to
arouse abruptly, engage the motive power of the vehicle, and roar
away imperiling the lives of innocent citizens"). In State v.
Lawrence, 849 S.W.2d 761 (Tenn. 1993), the court stated:
"We agree with the observation that `[a] motor
vehicle is recognized in the law as a dangerous
instrumentality when in the control of a sober person; in
the control of a drunk, the dangerous instrumentality
becomes lethal. Therefore *** the court [should
interpret] the drunk driving statute in a way that
[keeps] drunks from behind the steering wheels of motor
vehicles, even when the drunk need[s] to "sleep it
off." ' " Lawrence, 849 S.W.2d at 765, quoting Stevenson
v. City of Falls Church, 243 Va. 434, 440, 416 S.E.2d
435, 439 (1992) (Compton, J., dissenting, joined by
Carrico and Hassell, JJ.).
The legislature's use of the broad, unqualified phrase "actual
physical control" in section 11--501 reflects a legislative public
policy of encouraging those who plan to drink at a party or tavern
to arrange lodging or safe transportation home before they set out.
A person may embark upon an evening of drinking with the intention
of sleeping in his or her car, but the actual decision whether to
do so will be made at a time when the person's judgment is impaired
by alcohol. While some courts have embraced a construction of
"actual physical control" permitting the use of a vehicle for
stationary shelter (see, e.g., State v. Holloran, 669 A.2d 800, 801
(N.H. 1995); Atkinson v. State, 331 Md. 199, 216, 627 A.2d 1019,
1027 (1993)), for the reasons set forth above, we decline to adopt
such a construction.
The evidence in the case at bar is sufficient to support the
jury's determination that defendant was in actual physical control
of his vehicle. It is no defense that defendant may have intended
only to use the vehicle for shelter while achieving sobriety.
Defendant also argues that the trial court committed
reversible error by excluding evidence relevant to the defense of
necessity and by refusing to instruct the jury on that defense
theory. We need not address the argument, as it is waived. Supreme
Court Rule 315(b)(3) states that a petition for leave to appeal
shall contain "a statement of the points relied upon for reversal
of the judgment of the Appellate Court." 155 Ill. 2d R. 315(b)(3).
Rule 315(b)(5) states that the petition shall contain "a short
argument *** stating *** why the decision of the Appellate Court
should be reversed or modified." 155 Ill. 2d R. 315(b)(5). In the
case at bar, the "points relied on for reversal" and "argument"
sections of defendant's petition for leave to appeal focused
exclusively on the question of whether defendant was shown to be in
actual physical control of his vehicle; defendant did not raise any
issue involving the defense of necessity. A party's failure to
raise an argument in the petition for leave to appeal may be deemed
a waiver of that argument. Federal Deposit Insurance Corp. v.
O'Malley, 163 Ill. 2d 130, 154 (1994). We therefore decline to
address defendant's argument regarding the defense of necessity.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court
is affirmed.
Affirmed.
JUSTICE FREEMAN, dissenting:
Defendant contends the trial court erroneously barred him from
asserting the affirmative defense of necessity. I disagree with the
majority's refusal to address this contention. Further, I agree
with defendant that he had the right to present the necessity
defense to the jury. Accordingly, I dissent.
Initially, I agree with the majority that Illinois Vehicle
Code section 11--501(a) (625 ILCS 5/11--501(a) (West 1994)) does
not excuse an intoxicated person from "sleeping it off" in a parked
vehicle. The majority correctly interprets section 11--501(a),
based on the provision's plain language, supported by the rationale
that an intoxicated person who is "sleeping it off" can easily
start the vehicle and endanger life and property. Slip op. at 2-6.
Waiver
Although I agree with the majority's above-mentioned
interpretation of the Illinois Vehicle Code, I disagree with the
majority's application of the waiver doctrine to the issue of the
necessity defense. The appellate court addressed the issue in its
unpublished order. In this court, both sides fully discussed the
issue in their briefs and during oral argument. However, the
majority concludes that defendant waived the issue because he
failed to include it in his petition for leave to appeal to this
court. Slip op. at 6.
It is quite settled that the waiver rule is a principle of
administrative convenience, an admonition to the parties; it is not
a jurisdictional requirement or any limitation upon the
jurisdiction of a reviewing court. In re C.R.H., 163 Ill. 2d 263,
274 (1994); Dineen v. City of Chicago, 125 Ill. 2d 248, 265-66
(1988). "Thus, a party's failure to assert the argument in the
petition for leave to appeal does not preclude consideration of the
question on review, and this court has previously considered
matters that an appellant omitted from its petition for leave to
appeal." Dineen, 125 Ill. 2d at 266.
It may seem that a reviewing court is simply vested with
unprincipled "discretion," which the court may or may not exercise
as it pleases. However, a reviewing court invokes its authority to
override considerations of waiver based on the court's
responsibility for a just result and to maintain a sound and
uniform body of precedent. People v. Hudson, 157 Ill. 2d 401, 425
(1993); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967).
In the present case, defendant contends that the trial court
committed reversible error by excluding defendant's proffered
evidence relevant to the defense of necessity, and by refusing to
instruct the jury on that defense. It is doubtful that a jury trial
can produce "a just result" if incomplete or inaccurate
instructions are used. See, e.g., People v. Newbolds, 204 Ill. App.
3d 952, 954-55 (1990). The function of jury instructions is to
guide the jury in its deliberations and to help it reach a proper
verdict through the application of correct legal principles
according to the law and the evidence. People v. Hester, 131 Ill.
2d 91, 98 (1989). Appropriate jury instructions are essential to a
defendant's right to a fair trial. People v. Comer, 78 Ill. App. 3d
914, 916 (1979); accord 75A Am. Jur. 2d Trial §1079, at 610 (1991);
23A C.J.S. Criminal Law §1302, at 207 (1989). Also, there is a
"sound and uniform body of precedent" providing that a defendant is
entitled to the benefit of any defense shown by the entire
evidence. People v. Bratcher, 63 Ill. 2d 534, 540 (1976); People v.
Kalpak, 10 Ill. 2d 411, 424 (1957). I conclude that these rights
override considerations of waiver in this case.
Necessity Defense
Turning to the merits, I agree with defendant that he had the
right to present the defense of necessity to the jury. The record
shows that prior to trial, the trial court granted the City's
motion in limine to bar defense testimony concerning defendant's
intention or reason for sleeping in his vehicle. In support of his
motion to reconsider the ruling, defendant made the following offer
of proof. Danielle, defendant's girlfriend, was living in the
apartment of her friend and her friend's mother. The mother of
Danielle's friend would not allow defendant to stay in their
apartment. Defendant had only 25 cents, had no place to go, and had
no other choice but to sleep in his vehicle in the apartment
complex's parking lot. The trial court denied defendant's motion to
reconsider.
Motions in limine are encouraged in criminal cases to exclude
collateral or extraneous matters. However, the motion should be
used with caution so as not to deprive a defendant of a legally
viable defense. A trial court must be certain that the grant of a
motion in limine will not unduly restrict the opposing party's
case. A reviewing court will not reverse a trial court's grant or
denial of a motion in limine absent an abuse of discretion. People
v. Berquist, 239 Ill. App. 3d 906, 908 (1993); People v. Downey,
162 Ill. App. 3d 322, 334 (1987).
In the present case, the trial court's grant of the City's
motion in limine deprived defendant of a legally viable defense--
the affirmative defense of necessity. A defendant is entitled to
the benefit of any defense shown by the entire evidence, and has
the right to have the jury instructed as to the law applicable to
any state of facts which the jury might legitimately find to have
been proved from the evidence. Kalpak, 10 Ill. 2d at 424. A defen-
dant is so entitled even if the evidence on which such defense is
based is inconsistent with the defendant's own testimony (People v.
Janik, 127 Ill. 2d 390, 398 (1989); Bratcher, 63 Ill. 2d at 540),
or of doubtful quality (People v. Lyda, 190 Ill. App. 3d 540, 544-
45 (1989)). If the State's evidence does not raise the issue of the
affirmative defense, a defendant, to raise the issue, must present
"some evidence" thereon. People v. Unger, 66 Ill. 2d 333, 338
(1977); 720 ILCS 5/3--2(a) (West 1994).
The trial court may not weigh the evidence in deciding whether
an issue has been raised entitling a defendant to an instruction.
Lyda, 190 Ill. App. 3d at 544; People v. Sweeney, 114 Ill. App. 2d
81, 89 (1969). The evidence supporting the affirmative defense must
be sufficient to raise an issue of fact for the jury, creating a
reasonable doubt as to defendant's guilt. People v. Redmond, 59
Ill. 2d 328, 337-38 (1974). In other words, unless the evidence
before the trial court is so clear and convincing as to permit the
court to find as a matter of law that there is no affirmative
defense, the factual issue must be determined by the jury with
proper instruction on the applicable law. People v. Larry, 144 Ill.
App. 3d 669, 676 (1986); People v. Adcock, 29 Ill. App. 3d 917, 919
(1975).
The Criminal Code of 1961 defines necessity as follows:
"§7--13. Necessity. Conduct which would otherwise be
an offense is justifiable by reason of necessity if the
accused was without blame in occasioning or developing
the situation and reasonably believed such conduct was
necessary to avoid a public or private injury greater
than the injury which might reasonably result from his
own conduct." 720 ILCS 5/7--13 (West 1994).
Necessity is an affirmative defense. 720 ILCS 5/7--14 (West 1994).
"This defense is viewed as involving the choice between two
admitted evils where other optional courses of action are
unavailable [citations], and the conduct chosen must promote some
higher value than the value of literal compliance with the law
[citation]." Janik, 127 Ill. 2d at 399.
I conclude that the entire evidence, which includes
defendant's offer of proof, entitled defendant to raise the
affirmative defense of necessity. The following evidence was
undisputed. Defendant became intoxicated at a party at his home.
Defendant knew he was intoxicated; he further knew that he should
not and would not drive. However, Danielle did not want to spend
the night at defendant's home; rather, she wanted to return to her
friend's apartment. Defendant did not loan Danielle his car because
he needed it. For whatever reason, Danielle drove defendant to the
apartment in his car. Defendant and Danielle planned for defendant
to spend the night with Danielle at her friend's apartment.
However, her friend's mother would not allow defendant to stay in
the apartment. Defendant never drove his car that night and did not
intend to do so while intoxicated. For whatever reason, defendant
had only 25 cents, had no other place to go, and had no available
means to return home. Consequently, defendant slept in his car in
the apartment complex's parking lot.
The appellate court held that the trial court did not err in
barring defendant from asserting the necessity defense. The
appellate court's analysis of this issue was erroneous. The court
concluded that defendant was not without blame in occasioning the
situation because: (1) he voluntarily became intoxicated that
night, and (2) "[i]nstead of remaining at his house and allowing
his girlfriend to take his car home, he went with her in an
intoxicated state hoping to spend the night at her apartment."
However, defendant was drinking in his home with no intention of
driving that night. Additionally, the appellate court ignored
defendant's testimony that he simply needed his car.
The appellate court also declared without explanation that
"there were other reasonable alternatives to defendant sleeping in
his car with the engine running while he was intoxicated." However,
the appellate court ignored the fact that defendant presented some
evidence that he had no reasonable alternative.
Of course, the jury could have doubted defendant's evidence.
However, it is clear that defendant presented some evidence to
support the defense of necessity. No other options being available,
defendant chose the lesser of two evils by sleeping in his car in
a parking lot, rather than driving it and endangering persons and
property. This evidence was sufficient to justify the raising of
the defense and to have the jury consider it with appropriate
instructions. See Unger, 66 Ill. 2d at 341; People v. Blake, 168
Ill. App. 3d 581, 586-87 (1988).
For the foregoing reasons, I would reverse the judgments of
the appellate court and the circuit court of Du Page County, and
remand the cause for a new trial. Accordingly, I dissent.
JUSTICE McMORROW joins in this dissent.