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The charge of driving under the influence, or DUI, carries with it criminal penalties as well as consequences on a driver’s license. While a first DUI is serious and a second is more so, it only gets worse when you have a prior conviction for reckless homicide in connection with the operation of a motor vehicle on your record.

For years, a DUI that resulted in death was charged under the Criminal Code (720 ILCS 5/9-3) as reckless homicide in the operation of a motor vehicle. The law as written assumed that if you were under the influence of alcohol and you killed someone, your conduct was reckless.

In People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003), the Illinois Supreme Court held that this presumption violated the constitution by improperly shifting the burden to the defendant of proving that he was not guilty. This was the second occasion on which the Supreme Court had ruled the statute was unconstitutional.

In response, the Illinois General Assembly created a new category of DUI offenses known as aggravated DUI. One form of aggravated DUI involves a DUI committed during which one or more people die. 625 ILCS 11-501(d)

Prosecutors in McHenry County Illinois recently charged a driver who had served 12 years in prison for reckless homicide, for which he was currently on parole, with a DUI offense. The allegation, as yet unproven, is that the driver was under the influence of prescription medication.

The DUI law has six categories of driving under the influence. The first is driving with an alcohol concentration of .08 or greater. Category number two is driving under the influence (used when there is no evidence of an alcohol concentration).

A third category of DUI is driving under the influence of intoxicating compounds to an extent that it renders you incapable of driving safely. If they influence your driving, you may be charged with DUI. Examples would be sniffing glue or “huffing” gases.

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Even a first time charge of DUI (Driving Under the Influence) that results in a conviction can have serious consequences. For one thing, there are criminal considerations.

A first conviction for DUI is a Class-A misdemeanor unless there are aggravating circumstances. A Class-A misdemeanor is punishable by a fine of up to $2,500.00 and or up to 364 days in the county jail. 730 ILCS 5/5-4.5-55
However, if your driving record is otherwise relatively clean of accidents, serious tickets such as driving without a license, or leaving the scene or reckless driving, to name a few, most counties and most judges will not ask for substantial jail time if any. It may be different if there was an accident that involved injuries and it will be a felony is someone was killed.

Even if you avoid jail time, a DUI conviction requires the Illinois Secretary of State to revoke your driver’s license for one year for a first time conviction. 625 ILCS 5/6-205 and 6-208 Following the conviction, you must have a driver’s license reinstatement hearing.

Before you can attend such a hearing, you must wait out any hard time on your statutory summary suspension. Once that time has passed, you will need to obtain a Drug and Alcohol Evaluation Uniform Report completed on a form developed jointly by the Secretary of State, the Division of Alcohol and Substance Abuse (DASA) and the court system.

The form itself is a computer program. Based upon your driving record, your other alcohol and drug related criminal history and information you provide at an interview with a drug and alcohol evaluator, the program generates a risk classification level for you.

Assuming this is the first DUI arrest you have ever had, your risk level could be minimal, moderate, significant or high. Minimal risk offenders are those who take a breath test, register under .15 and have no abuse or dependency symptoms.

You must complete a 10-hour Driver Risk Education (DRE) course. The purpose of this is to teach you about the dangers of drinking and driving and how to avoid doing so.

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In many instances, an Illinois driving under the influence, or DUI is won or lost based upon the trier of fact (the judge or jury) receiving the results of a breath test. By way of background, there are two types of breath tests that a driver suspected of driving under the influence (DUI) will face.

At the roadside, the police will first administer a series of standardized field sobriety tests. These are physical tests that purportedly correlate with a blood alcohol content (BAC) of at least .08.

A BAC of .08 is the minimum level at which the law assumes you are under the influence of alcohol. 625 ILCS 5/11-501.2 This figure represents how much alcohol has entered your bloodstream, the point at which alcohol negatively effects those parts of the brain that regulate skills related to driving, such as vision, judgment and reaction time.

Furthermore, at the roadside, the officer will also ask you to blow into a handheld device. This is known as a preliminary breath test (PBT). The results of this test are not evidence of your BAC but are merely a tool to help the police determine whether to arrest you for DUI. 625 ILCS 5/11-501.5
Following the arrest for DUI, the police will ask you to submit to a chemical test to determine your BAC. The chemical test is the “official” test, as the results of it are admissible to prove your BAC, Unlike the field sobriety tests, the chemical tests are considered direct evidence of your blood alcohol content.

The chemical test is usually administered at the police station, although there are certain testing machines that are certified for use in the field. Unlike the PBT devices, these machines, as well as any machines that produce “official” results, are subject to certain certification requirements. Likewise, the operator of the machines must be certified and the method of administering the tests is also regulated by law. 625 ILCS 5/11-501.2

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Illinois law currently provides that if you are arrested for DUI, your driver’s license may be suspended under the statutory summary suspension (SSS) laws. A suspension, which is a temporary invalidation of your driving privileges for a specified period of time, occurs in conjunction with a request by the arresting officer to take a chemical test, either a breath test or a blood test.

There is a different breath test, the preliminary breath test (PBT), that the officer will usually ask you to take at the arrest scene. Your taking or refusing to take this test has no bearing upon whether you are considered to have refused the test that determines the length of an SSS. 625 ILCS 5/11-501.5 Your response to the request to take the test at the police station is the one that counts, as it is the “chemical test”.

Likewise with blood tests, which are usually used when there is a crash or the officer suspects drugs. At the hospital, the emergency room personnel will ordinarily draw blood for the purpose of rendering treatment. This is known as a “medical draw”.

Later, a police officer will request a separate blood draw for his DUI kit. If you have had a medical draw but refuse the officer’s request for a blood kit draw, you are considered to have refused testing, even though the results of the medical draw can be used against you in the DUI case. 625 ILCS 5/11-501.4.

As shown by the varying scenarios with “refusal”, often with the law what seems obvious is not always so. And so it goes with “first offender”, another term that is relevant in determining the duration of a SSS.

In the context of SSS, a “first offender” is determined by looking back five years. If there is no DUI in the past 5 years, the offender is a first offender, even if there are older offenses. 625 ILCS 5/11-500

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In addition to making Driving Under the Influence (DUI) illegal, Illinois DUI law also has a class of offenses known as “aggravated” DUI. 625 ILCS 5/11-501(d) Aggravated DUI is a standard DUI with certain factors that the General Assembly has determined make it “worse” than standard DUI.

Aggravating factors include a third or subsequent DUI “violation”. In most instances, adverse actions under the Illinois Vehicle Code require a conviction. In those situations, other than when dealing with the law pertaining to Commercial Driver’s Licenses (CDLS), supervision is thus not a factor in the equation.

However, in order to receive court supervision, you must admit that you committed the violation. Therefore, since the aggravated DUI law requires only a violation as opposed to a conviction, supervision does count.

Another aggravating factor is that in committing a DUI, the person caused a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another. Someone who has previously been convicted of reckless homicide in the operation of a motor vehicle in which alcohol was a factor, or who was previously convicted of aggravated DUI involving death or an accident that resulted in great bodily harm or permanent disability or disfigurement to another is also guilty of aggravated DUI.

There are also DUI enhancements where the driver was DUI and was involved in an accident while operating in a school speed zone that caused injury to any other person or the DUI driver was in an accident that caused injury to an occupant under the age of 16.

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An Illinois motorist was arrested for DUI in suburban Chicago. Nothing unusual about that but much of the media is in high dudgeon because there is evidence he was traveling 142 MPH.

The defendant lost control of the 2008 Dodge Charger he was operating, struck a curb and flipped and rolled the car. Police came to the scene, and after observing the motorist, suspected he might have been driving under the influence.

He performed standardized field sobriety tests (SFST) which he failed. First among the tests that he was administered was the Horizontal Gaze Nystagmus (HGN).

Based upon what can only loosely be called “science”, an officer waves a pencil or other small object across the driver’s face. Based upon the officer’s subjective observations of how the accused’s eyes “track” the movement of the object, the officer “scores” the results and decides whether the driver “passed”.

Even if the officer performs every single step of the multi-step process perfectly correctly and even if he is 100% accurate in interpreting the results, the test is less than 70% accurate in estimating if the test subject’s BAC is above the legal driving limit of .08. Any mistakes in the administration or interpretation of the test can only serve to reduce its accuracy.

And nobody other than the officer has an opportunity to view his observations and interpretations. The judge and jury only see a video in which a policeman is moving a pencil in front of someone’s eyes. Yet this test is the first step in what will no doubt culminate in a DUI arrest.

The second SFST is the walk-and-turn, commonly referred to as “walking a straight line”. But under testing protocol, the straight line is imaginary. Under testing protocol, the slightest deviation from the very strict protocol is scored against you. For instance, if instead of marching on your right foot as you turn around, you pivot, as any normal person would, it is marked against you.

The only person injured in this accident was the fool driver. It was his first offense, which rendered him eligible for court supervision. The judge cannot order jail time if he decides that supervision is an appropriate disposition. While the BAC and the speed were high, this outcome is defensible.

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As concerns Illinois DUI offenses, the Secretary of State (“SOS”) serves two functions, one as record keeper and the other as determining whether someone who has been arrested for DUI can be a safe and responsible driver following an Illinois driver’s license suspension or revocation. 625 ILCS 5/2-118

A DUI arrest can result in a suspension or a revocation, or both, or neither. A suspension constitutes a “pause” in your right to drive for a period of time. Once that period of time ends, your right to drive is restored, provided there is not something else blocking that right.

In DUI cases, a revocation may create that roadblock. A revocation terminates your driver’s license and your right to drive in Illinois.

A revocation can only be removed by applying to the Secretary of State and demonstrating that, despite your DUI, you can now be considered safe to drive. The right to request that restoration only comes after a waiting period of one year, five years or ten years.

The waiting period is one year for a first conviction, five years for a second conviction that comes less than twenty years after a first conviction and ten years for a third conviction. Court supervision is not a conviction.

A driver’s license suspension happens when you are arrested for DUI and are asked to take a test and either register a blood alcohol level of at least .08 or refuse to test. The suspension period for a refusal is longer than it is for testing.

And the suspension is always longer if you have had a DUI arrest in the past five years, regardless of whether you test over .08 or refuse. People with a DUI in the previous five years are known a non-first offenders.

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In the 1980’s, the Federal government began inserting itself into DUI laws. Prior to that time, matters of traffic safety were left to each state. The Federal government strong-armed the states into accepting federal oversight by threatening to withhold highway funds for those states that did not play ball.

The first example of this intrusion into states’ rights was the 55 MPH speed limit on the Interstate. Other laws have led to a nationwide drinking age of twenty-one, to the idea of a mandatory breath test suspension (known in Illinois as a statutory summary suspension) and to uniform blood alcohol level (BAL) requirements.

As of July 2, 1997, the legal BAL limit in Illinois is .08. The legal definition of BAL is 8 grams of alcohol per 100 milliliters of blood or 8 grams of alcohol per 210 liters of breath. 625 ILCS 5/11-501.2

This means you are driving under the influence if the state can prove that at the time you were in actual physical control of a motor vehicle, you had .08 grams of alcohol within 100 milliliters of blood. In the alternative, using certain breath testing devices, your breath can allegedly be converted into a blood alcohol equivalent, the limit being .08 grams of alcohol within 210 liters of breath.

Michigan passed the .08 law with a sunset provision, meaning that unless it is extended, it will go back up to .10. If that happens, MI will lose millions in highway money.

There are two different types of DUI in Illinois. The first is proof of actual impairment (common law DUI). With that type of charge, the state must prove that alcohol reduced your ability to think and act with ordinary care .

In a common law DUI, a reading of at least .08 creates a presumption that you are under the influence. A reading of .05 or less creates a presumption that you were not under the influence. A BAC of less than .08 but greater than .05 creates no presumption in either direction. 625 ILCS 5/11-501.2
Although the .08 reading creates a presumption, that merely means that the jury will be allowed to assume, absent contrary evidence, that the driver was under the influence. However, the driver can argue that even though he was above .08, he was not under the influence.

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A Champaign Illinois police sergeant was arrested for DUI The arrest occurred in nearby Piatt County (Monticello).

The DUI arrest was anything but routine. The cop was weaving across the Interstate so badly that other drivers called the police.

The driver had slurred speech and an odor of alcohol. Thereafter, he was administered a series of Standardized Field Sobriety Tests (SFST)

The first of the three tests administered would have been the Horizontal Gaze Nystagmus (HGN). The examiner administers the test by waving a pencil or other object at different angles across the subject’s face.

He watches for certain movements in the accused’s eyes. He “scores” the test by assessing how well, in his opinion, the subject performs against expected norms. As you can see, the test may not be as reliable or scientific as police claim.

First of all, the test is scored by a person who already suspects the subject is intoxicated. Otherwise, the officer would not be asking the accused to perform the test.

Furthermore, the accused is being measured against a hypothetical “normal” person. This fails to take into account inherent physical differences from one person to the next, differences that do not necessarily translate into proof of intoxication.

If you flip a coin ten times and tails comes up seven times, that does not prove the flip was invalid. It just proves that averages merely represent the expected outcome. Variances in results do not prove that something is amiss.

The second test that the defendant would have performed was the walk-and-turn (WAT). It is just like what it sounds: you walk nine steps, turn around and walk nine steps back from where you came. The officer “scores” your performance.

But you are not just walking. You are walking “heel-to-toe”. You are walking on an imaginary line. You are required to walk with your arms and hands in a certain position, as well as your eyes and head.

As you take each step, you must count aloud. And you are supposed to turn in a specific manner. Not a military turn but “small steps” in the proper direction. And if you begin your steps in either direction on the wrong foot or begin before the cop says “go”, points are taken off.

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Illinois law on Driving Under the Influence (DUI) provides that “A person shall not drive or be in actual physical control of any vehicle within this State while:” [under the influence]. 625 ILCS 5/11-501 There are a number of issues involved in the quoted phrase.

One is the matter of “driving”. The police need not prove that they actually observed you driving. They must simply satisfy a jury beyond a reasonable doubt that you were driving at a time you were under the influence of alcohol. People v. Garnier, 20 Ill. App. 2d 492, 156 N.E.2d 613 (1 Dist. 1959)

This can be established by circumstantial evidence. For instance, if you the police find you in a cornfield in the middle of nowhere and your truck is ten feet away and there are no footprints in the snow, a jury might infer that you were driving. People v. Slinkard, 362 Ill. App. 3d 855, 298 Ill. Dec. 858, 841 N.E.2d 1, (1 Dist. 2006), appeal denied, 219 Ill. 2d 591(2006)

There are numerous cases on the issue of “actual physical control”. in grossly simplified form, it’s the idea of keys in the ignition, engine running. But there is no magic formula for determining whether there is actual physical control. It is a question of fact for the jury to determine. People v. Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1 Dist. 1990)

Another question is whether you can drive drunk on wholly private property? The answer is “no” because the Illinois DUI laws apply “within the State” of Illinois. People v. Erickson, 108 Ill. App. 2d 142, 246 N.E.2d 457 (2 Dist. 1969)

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