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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 →

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The term “first offender” seems straightforward but Illinois DUI law gives it different meanings depending upon the context.  For the Statutory Summary Suspension (SSS) laws, it has one meaning.  The DUI criminal statute defines it another way.  And for someone seeking a driver’s license reinstatement hearing, there is another set of rules.

An SSS is strictly a driver’s license sanction (penalty).  It happens when someone is arrested for DUI.

The driver will be asked to provide standardized field sobriety tests and a preliminary breath test, using a handheld device that is administered on the scene. There are no criminal or driver’s license consequences that flow from refusing any or all of these tests.

However, once these tests have been completed or refused, the driver can expect to be arrested for DUI, handcuffed, placed in a squad car and delivered to the booking station.  At the station, the police will ask the arrested person to provide a breath test (or taken to the hospital for a blood test) , using a machine that is certified by the state of Illinois and operated by someone trained to do so. (625 ILCS 5/11-501.2)

While in some states, refusing to take the test is a crime, that is not the case in Illinois.  Either a BAC reading of .08 or higher, or a refusal, will result in a suspension of the person’s driver’s license. A suspension is a “pause” for a defined period of time in the license of the driver.  Continue reading →

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A vast majority of cases charging driving under the influence, or DUI, end up with a plea to a DUI conviction, court supervision, a reduced charge such as reckless driving or a dismissal.  There is a common misconception that hiring a lawyer automatically results in a “better deal”.

The reality is that cases are won or lost in two primary aspects of the case.  The first involves procedural irregularities, or what many unfortunately refer to as “technicalities”.  Good DUI lawyers know that “technicalities” are actually violations of Constitutional or other legal provisions.

The entire purpose of a DUI prosecution is to prove a claim that the defendant (the accused driver) failed to follow the law. In the United States, the prosecutor bears the burden of proof beyond a reasonable doubt. It only seems fair that the party to a case who has the burden of proving its claim that the other side did not follow the law should itself be required to follow the law.

If the state does not follow the law and if there are no consequences for its failure to do so, then the state has no incentive to comply with the Constitution and other laws the next time a situation arises. Therefore, the only proper remedy is to exclude the evidence that is gathered in violation of the driver’s Constitutional rights or contrary to established legal procedures for collecting and presenting evidence. Continue reading →

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A recent report refers to a driver who was involved in a fatal crash where he was allegedly drunk but was not at fault and still charged with a felony.  This can make sense only with an understanding of Illinois DUI law. “DUI” refers to Driving Under the Influence.

The DUI law in Illinois is part of the Illinois Vehicle, specifically 625 ILCS 5/11-501.  Within it are six different categories of DUI.

One category is DUI with a blood alcohol content (BAL) of .08 percent or greater. Illinois law (identical to the other 49 states due to federal laws that take away highway funds from any state that does not have .08) states that if upon measuring a given amount of your blood, either directly or inferentially through your breath, it contains .08 percent or more of alcohol, you are considered to be driving illegally, regardless of your actual or perceived state of impairment. This is known as the “per se” law.

A DUI prosecution can occur even without a BAL or a BAL under .08.  This would be known as an “affected by” case.  In other words, evidence beyond the BAL demonstrates that your driving was “affected by” alcohol consumption.

Such evidence gathering would be begin with the officer’s observations of your driving skills, as well as how you handle the initial stop (do you pull over promptly, do you pull over safely, etc).   Continue reading →

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In Illinois, DUI means Driving Under the Influence.  For instance, under 625 ILCS 5/11-501, it is illegal to drive under the influence of alcohol. It is illegal to drive under the influence of any illegal drug, including marijuana.

Although it is legal to drive while using a prescription medication that can affect your mind, it is illegal to drive if the medication so alters your mind that you cannot think and act with ordinary care while operating a motor vehicle.  It is also illegal to drive under the influence of any intoxicant (“huffing”).

Finally, it is illegal to drive if the percentage of alcohol in your bloodstream is .08 or higher, because there are scientific studies that suggest anybody with a blood alcohol ratio of at least .08 suffers from impaired driving. This is known as the “per se” law, meaning that the existence of that blood alcohol level, standing alone, is sufficient to prove a DUI and also to support a statutory summary suspension (SSS). Continue reading →

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Those who are arrested for DUI in Illinois are subject to detention until a cash bond is posted. The purpose of the bond is to ensure the defendant’s return to court. If the defendant fails to appear at any court date, the cash bond will be forfeited and the judge will thereafter issue an arrest warrant.

The sheriff may make an active effort to locate the defendant. Even short of that, the defendant is subject to arrest at any time thereafter in the event he or she has future contact with the police.

Even if the initial purpose of the contact is not related to serving the warrant, if the police run a warrant check upon contact, something they ordinarily do, the defendant will be taken to jail as a result of the active warrant, since a warrant is a court order.  There is no statute of limitations for a warrant and no jurisdictional restriction. In other words, a person who has an active warrant can be hauled to jail at any time and from anywhere in the country until the warrant is served or a judge quashes it.

Continue reading →

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As a result of an Illinois Supreme Court ruling, a driver who is charged with driving while suspended based upon a Statutory Summary Suspension that is later rescinded can be convicted of the driving while suspended charge. Defendant David K. Elliott was arrested for Driving Under the Influence (DUI) on August 26, 2009. (625 ILCS 5/11-501)  At that time, the arresting officer also served Defendant with a notice of Statutory Summary Suspension (SSS) of his driver’s license and driving privileges. (625 ILCS 5/11-501.1) In accordance with that same provision, the SSS became effective forty-six days later, or October 11, 2009.

On September 1, 2009, within the ninety days allotted by law in which to do so (625 ILCS 5/2-118.1), the Defendant filed a petition to rescind the SSS.  However, because the SSS is “summary” in nature, the mere filing of the petition to rescind does not stay its commencement.  (People v. Trainor, 156 Ill. App. 3d 918, 109 Ill. Dec. 746, 510 N.E.2d 614 (4 Dist. 1987))

On October 13, 2009, two days after the SSS commenced, the Defendant was arrested for driving on a suspended license in violation of 625 ILCS 5/6-303.  On October 19, 2009, the trial judge entered an order granting the Defendant’s petition to rescind the SSS.

On October 23, 2009, the Illinois Secretary of State entered an order of rescission of the SSS, thereby clearing the suspension off the Defendant’s driving record.  Subsequently, the Defendant moved to dismiss the driving while suspended charge, arguing that because the SSS had been rescinded, the driving while suspended charge lacked a legal basis. Continue reading →

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The legal limit in Illinois for a Driving Under the Influence (DUI) charge is .08%. (625 ILCS 5/11-501) This is known as the Blood Alcohol Level or BAL.

It is a measurement of the amount of alcohol in the driver’s bloodstream.  Science shows that above a certain level, alcohol negatively affects a human being’s motor skills (reaction time, coordination and judgment) which are necessary to driving safely. The State of Illinois, and in fact all 50 states, have determined that this percentage of alcohol in a person’s bloodstream renders them unfit to operate a motor vehicle within the State of Illinois, including on private property.

Upon believing that a person may be under the influence of alcohol, the police will ask the driver to perform a series of standardized field sobriety tests (SFTS), which are physical coordination, motor  skill and multiple task tests to determine a driver’s possible fitness to drive. The driver will also be asked to submit to a Preliminary Breath Test (PBT) by use of a rudimentary breath alcohol testing device.

The results of this test are not admissible in court as evidence of the actual BAL (625 ILCS 5/11-501.5)  However, they can be used in assessing whether the investigating officer has probable cause to make a DUI arrest.

Continue reading →