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A news media outlet filed a report concerning a DUI offense that occurred in Illinois. The report indicates that 11, resulting in the death of a passenger and injuries to other passengers.

The driver is charged with what is known as “aggravated DUI”.  Under Illinois law, aggravated DUI is a felony. (625 ILCS 5/11-501(a)(1))

A standard DUI is a class-A misdemeanor, the highest level misdemeanor, just a step below a felony.  The maximum penalty for a Class-A misdemeanor is  364 days in the county jail and or a fine of no more than $2,500.  (730 ILCS 5/5-4.5-55)

The term “aggravated DUI” means that in committing a DUI, the driver did something while driving drunk that makes his or her conduct more serious than a standard DUI, so much so that it is considered felonious.  There is list of aggravated DUI offenses at 625 ILCS 5/11-501(a)(1).

The lowest level felony (Class-4) is 1-3 years in prison. A Class-3 is 2-5 years. The sentence for a Class-2 felony is 3-7 years and a Class-1 is 4-15 years.

Each felony can also carry fines and in general, subject to an ever-growing list of exceptions, probation instead of or in combination with, prison, is available. On the other hand, for a Class-X felony, probation is not available and the term of imprisonment is 6-30 years. (730 ILCS Chapter V)
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Those who are arrested for DUI in Illinois must understand how long the look back period will be.  As is the case with much of the law governing Driving Under the Influence, the answer is not clear because it is based upon political compromises and court interpretations of sometimes ambiguous language.

The answer depends upon to what the question pertains. Driver’s license or criminal charges? Suspension or revocation?

Begin with the criminal case. A DUI conviction can carry a sentence of up to 364 days in jail, two years of probation, a $2500 fine or any combination of the three, as it is a Class-A misdemeanor. (625 ILCS 5/11-501)  The best outcome for someone who is found guilty of the DUI offense with which he or she is charged is court supervision. (730 ILCS 5/5-6-3.1)

Court supervision can never carry a jail sentence.  While court supervision requires that you plead to, or are found guilty of, the offense, it is not a conviction, the latter of which requires the Illinois Secretary of State to revoke your driver’s license.

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An Interlock Ignition Device (IID) is a machine that is internally connected (“interlocked”) into your motor vehicle’s ignition. Unless you blow into a tube that runs to the machine and blow below a predetermined breath alcohol level (BAL), your vehicle will not start. Furthermore, to ensure that you did not have someone else blow on your behalf just to get you on the road, you must retest at given intervals while the vehicle is moving (“rolling retest”) or the vehicle will stall.

For the purpose of Illinois DUI law there are two types of driving privileges that stem from an IID.  One of these is known as a Breath Alcohol Interlock Ignition Device (BAIID); the other, a Monitoring Device Driving Permit (MDDP).  Both of these permissions to drive require use of the same type of IID, but which of the permissions applies depends upon the status of your Illinois driving privileges.

This requires an understanding of the differences between driver’s license suspensions and revocations and between administrative sanctions and criminal consequences. A suspension represents a temporary removal of your driving privileges for a specified period of time. When the suspension time ends, your driving privileges will be restored upon payment of the appropriate fee, unless your driving privileges are otherwise invalid.

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A conviction for Driving Under the Influence, or DUI, results in a mandatory revocation of your driver’s license under Illinois law. (625 ILCS 5/6-208) For a first conviction, the revocation is for a year. For a second conviction, five years. A third conviction will lead to a revocation of ten years. And a fourth one causes a lifetime revocation.

A revocation is different from a suspension.  A suspension is a temporary hold on your driver’s license and it ends after a specified period of time. A revocation means that your license and your right to drive in Illinois cease to exist. Restoration of those privileges requires an administrative hearing with the Secretary of State.  (625 ILCS 5/6-205)

Court supervision does not count as a conviction and thus avoids a driver’s license revocation.  However, a driver’s license suspension, known as a Statutory Summary Suspension (SSS), will apply even if the you receive court supervision or the DUI is dismissed.  The mere fact that you either refused the breath or blood test or registered .08 or higher is sufficient to impose the SSS unless the judge rescinds the SSS on the basis of one of the grounds set forth in the SSS law. (625 ILCS 5/2-118.1)

During the SSS, a driver who has not had a DUI in the prior five years is eligible to apply for a Monitoring Device Driving Permit (MDDP) during all but the first thirty days of the suspension.  The MDDP is automatic and while it requires filing forms with the Secretary of State, no hearing is required. (625 ILCS 5/6-206.1) No MDDP is not available if you have had a DUI in the previous five years.

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The United States Supreme Court has the final word with regard to the interpretation of the United States Constitution, including the Fourth Amendment.  The Fourth Amendment prohibits the Government from engaging in unreasonable searches and seizures. It requires, subject to a growing list of exceptions, the Government to obtain a warrant based upon probable cause prior to engaging in a search.

In the case of Riley v. California, the police made a traffic stop of Riley and determined he was driving on a suspended driver’s license.  The Supreme Court long ago held that the police may search a person, as well as the area within his immediate control, without probable cause when the search is made “incident to arrest”.  This exception is based upon police safety and the possibility of the destruction of evidence of a crime.

In making the search incident to Riley’s arrest, police located his cell phone. Thereafter, they explored the contents of his phone and found evidence he was a member of a street gang and may have been involved with a recent murder. This all led to additional charges being filed.

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If a motorist is suspected of Driving Under the Influence (DUI),  law enforcement will request breath and or blood tests. There are two types of breath tests that must be distinguished.

Before police can make an arrest for DUI, they must have probable cause to believe the driver has committed the offense.  In other words, they must gather a sufficient amount of evidence to create  a “substantial chance” or “fair probability” of criminal activity. (Illinois v. Gates, 462 U.S. 213 (1983))

This evidence gathering depends in part upon the officer’s observations of the driver’s actions and conduct. This would include the driver’s compliance with safe driving habits and obedience to traffic laws, his or her reaction to the officer’s commands to stop and their maneuvers while pulling over.

After approaching the driver, the officer would note the driver’s physical appearance and actions (bloodshot eyes, odor of alcohol, slurred speech), ability to follow instructions and understanding of time and place.  The officer would also be cognizant of the driver’s movements upon leaving the vehicle (staggering, unsteady balance,  difficulty getting out of the vehicle).

Once the driver has come back to the squad car-typically within range of a dash cam-the investigating officer will have the driver perform standardized field sobriety tests. First up would be the horizontal gaze nystagumus. In this test, the officer moves a pencil in front of the driver’s eyes looking for certain reactions from his pupils that allegedly are “clues” to intoxication. Continue reading →

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In Illinois, a first time offense for Driving Under the Influence (DUI) may result in a dismissal, a conviction or court supervision.  In a court supervision scenario, the offender pleads guilty to the DUI charge. (730 ILCS 5/5-6-3.1)

In return, the judge imposes certain conditions upon the driver that he or she must satisfy during the time the supervision is in effect.  (Supervision cannot last longer than two years).  Among the conditions are payment of fines, completion of a Victim Impact Panel, obtaining a drug and alcohol evaluation, as well as completing any necessary treatment classes, and not violating any criminal laws.

The word “supervision” conjures up images of close oversight by the judge. In reality, as long as the offender complies with the supervision conditions, there will be no direct contact with the judge or a probation officer.  At the end of the supervision period, the DUI charge will be dismissed assuming that the offender has complied with the supervision requirements.

However, while the charges are dismissed, the supervision stays on the driving record that is forever available to the police, the prosecutor and the judge. This is critical, as DUI supervision is a once in a lifetime sentence, which is why the record becomes permanent. (730 ILCS 5/5–6-1) Continue reading →

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New York state has implemented legislation that will require police to demand blood-alcohol tests in any case in which there is an accident that results in death or serious personal injury. At present New York law authorizes such testing only if police suspect the driver is guilty of DUI (Driving Under the Influence).

Illinois DUI law provides for blood tests in a number of circumstances in accident situations. If someone is involved in an accident and is taken to the hospital, standard hospital procedure is to draw blood to determine the proper course of medical treatment. The blood tests include an analysis for drugs and alcohol. This is known as a medical draw. (625 ILCS 5/11-501.4)

The results of the medical draw are admissible in the DUI prosecution as evidence that the defendant (driver) had a Blood Alcohol Content (BAC) of .08 or greater, the legal limit in Illinois. (625 ILCS 5/11-501)  However, there is another consequence that flows from an Illinois DUI arrest.

Police will ask the defendant to submit to a breath or blood test, even if the defendant has already provide a medical draw. The results of this draw, or the defendant’s refusal to consent to the police officer’s request to provide a blood sample, will determine if the defendant will incur a driver’s license suspension and if so, for how long. Continue reading →

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It should come as no surprise to anyone that Driving Under the Influence, or DUI, is illegal.  And because the law assigns criminal penalties, which can include both fines and jail, as well as probation, community service, alcohol evaluations and classes and Victim Impact Panels, to a violation of the DUI laws, it constitutes a crime.

However, the prospect of jail time is on the table only if there is a DUI conviction.  DUI supervision may be an attractive sentencing option for a number of reasons.

A sentence of court supervision can never involve incarceration (jail or prison).  (People v. Roper, 116 Ill. App. 3d 821, 452 N.E.2d 748, 72 Ill. Dec. 495 (1983))

However, receiving supervision requires the accused (known in legal terminology as the “defendant”) to plead guilty to DUI.

The judge thereafter imposes certain requirements on the defendant that the defendant must complete within a period of time that the judge assigns, not to exceed two years. Conditions include obtaining a drug and alcohol evaluation, completing classes to help avoid any further DUI offenses, paying fines and incurring no additional legal problems during the terms of the supervision.

If the defendant completes these requirements, a conviction never comes about and the case is dismissed.  There is no conviction.  As a result, the defendant does not lose his or her driver’s license. Continue reading →

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Every state has a constitution and a supreme court that provides the ultimate interpretation of matters that arise under that constitution.  Similarly, there is a Federal constitution which the United States Supreme Court interprets.  In the event of a conflict between the two, the Supremacy Clause of the United States Constitution makes the United States Supreme Court the final word.

The first ten amendments to the United States Constitution are known as the Bill of Rights. These Amendments restrict and define what the Federal government can and cannot do in its relationships with its citizens.

Although at one time the Unites States Constitution applied only to the Federal government, since the Civil War and passage of the Fourteenth Amendment’s Due Process Clause, the restrictions in the Bill of Rights have been applied to actions by state governments. This is known as the Incorporation Doctrine.

One of the most important Constitutional provisions in DUI law is the Fourth Amendment. The Fourth Amendment prohibits law enforcement from conducting “unreasonable searches and seizures”.

Many of the United States Supreme Court’s decisions in criminal law involve interpretations of the Fourth Amendment.  Every encounter a citizen has with law enforcement while operating a motor vehicle, even a simple speeding ticket, implicates the Fourth Amendment, making these decisions especially important. Continue reading →