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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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Posted in: DUI
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The focus of efforts in Illinois to reduce offenses for Driving Under the Influence (DUI) has taken three directions. The first is the criminal justice system, which has made DUI a serious crime.

Even a first DUI conviction is a Class-A misdemeanor subject to a fine of as much as $2,500.00 and up to 364 days in county jail, or both a fine and jail. 625 ILCS 5/11-501. A second offense carriers additional penalties and a third offense is a felony.

The law has also created other aggravating factors that pile on additional penalties, mandatory minimums and other “feel good” provisions. Some of the variables include the age of passengers, the severity of the injury, the number of people who perish in a fatal accident, the location of the offense such as a school zone, and other politically appealing scenarios.

The second “hammer” the law applies to DUI matters is directed at driver’s license consequences. The mere fact you are arrested puts you at great risk of suffering a driver’s license suspension.

You are asked to take a breath test. You take the test and if the results are .08 or greater, your driver’s license will be suspended for anywhere from 6 to 12 months. And the results of the breath test reading can be used against you in the criminal prosecution.

You have the option of refusing the test. In that case, the prosecutor will argue that your refusal is “evidence of a guilty mind”, or in other words, if you thought you were sober, you would take the test in order to prove your sobriety.

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Posted in: DUI
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In the news is a Springfield firefighter arrested for a third Illinois DUI. With a third DUI, the Captain faces some serious criminal and driver’s license issues.

For the driver’s license issues, you have to have more information beyond the fact this is the third arrest for DUI (Driving Under the Influence). Illinois driver’s license law provides that a person with three DUI convictions will suffer a driver’s license revocation for ten years. 625 ILCS 5/6-208

However, supervision is not a conviction 730 ILCS 5/5-6-1. (d). Therefore, for the purpose of determining how long you are revoked, do not include any DUI supervision dispositions, any DUI dismissals or any DUI tickets that result in a reduction in the charge to something such as reckless driving.

A DUI revocation does not mean you cannot drive for ten years. If you are able to demonstrate that not being able to drive is causing “undue hardship”, you may, after the first year of a revocation, apply for a Restricted Driving Permit (RDP) unless your previous DUI was less than five years ago and your license is suspended under the statutory summary suspension laws.

A statutory summary suspension happens when you are asked to take a breath (or blood) test and refuse to do so, or take the test and register .08 or higher. The suspension for refusing is much longer than for blowing over .08. Those who have a previous arrest less than five years ago cannot apply for an RDP during the suspension. 625 ILCS 5/6-208.1

The consequence of a refusal in that situation is a three year suspension and no driving. Taking the test and failing results in a one year suspension with no driving.

On the other hand, if you have no prior DUI offense within five years, a test over the legal limit results in a suspension for six months. A refusal causes a twelve month suspension.

During all but the first thirty days of the suspension, you are eligible to apply for a Monitoring Device Driving Permit (MDDP). This allows you to drive on an unlimited basis provided you agree to install an Interlock device that monitors your breath alcohol reading when you start your car and periodically while you are driving it.

Thus, for purposes of the revocation, it is not the number of DUI arrests that matters but the number of convictions. In terms of the statutory summary suspension length, the number of arrests or convictions do not matter. It’s how far apart they are and whether or not you took at test at the time of the most recent arrest.

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Posted in: DUI
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You are arrested for an Illinois DUI (Driving Under the Influence) You have posted bond, been released from jail and have been assigned a court date. You have in your hand a bunch of papers and are wondering, what now and what does this all mean?

You will probably receive a confusing array of uninformed advice in answer to this uncertainty. In order to understand what is going on, it is important for you to realize some fundamental things.

One critical item to keep in mind is the distinction between a driver’s license suspension and a revocation. A suspension is a temporary withdrawal of your right to drive in the state of Illinois. 625 ILCS 5/1-204 When the temporary period ends, your right to drive requires nothing more than paying a fee to the Illinois Secretary of State, provided that your driving privileges are otherwise valid.

In connection with a DUI offense, one of the things that can prevent your driver’s license from being otherwise valid is a driver’s license revocation. 625 ILCS 5/1-176 A revocation effectively terminates your current license, rather than simply putting it on hold as does a suspension. In order to be entitled to drive again, you must have a driver’s license hearing with the Illinois Secretary of State.

A driver’s license revocation occurs after a DUI conviction. DUI is a criminal charge which requires involvement of the courts and a determination that the state has enough evidence to find you guilty beyond a reasonable doubt.

Your right to apply for a new license is denied during the period of your revocation. That period will be one year for a first conviction, five years upon a second conviction and ten years with a third conviction. If any arrest that results in a fourth or later conviction occurs after January 1, 1999, you can never apply for a license. 625 ILCS 5/6-208

In many circumstances, even though you cannot apply for a full license, the Secretary of State is authorized to grant you a hearing to request a restricted driving permit (RDP) that allows you to drive for limited purposes (employment, medical for you or family members, support group meetings, court ordered community service, day care and school for you and family members). However, upon a second or more conviction, you must wait one year before you may apply for an RDP.

There is also a waiting period of one year if you are under 21 at the time you are arrested for a DUI for which you are later convicted. Another situation that will block you from receiving an RDP hearing is if at this is your second DUI offense in the past five years.

Your right to request an RDP will be put on hold for one year if you took a chemical test at the time of your second arrest and three years if you did not take a test. These time periods, by the way, apply even if the DUI charge is dropped, or in other words, even if you are not convicted of the DUI.

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Each year, the United States Supreme Court is asked to grant certiroria (which is necessary before the High Court will hear an appeal) in tens of thousands of cases. The Court only accepts about 150 of those petitions a year. All other applicants’ are denied Supreme Court review.

The court did agree to hear an appeal of a DUI case, something that appears to have occurred on only one other prior occassion, in the early 1980’s. The issue the Court agreed to decide was whether, in connection with a DUI arrest, the police may forcibly draw blood from a DUI suspect without first obtaining a search warrant?

In an Illinois DUI case, one of the investigative tools at the disposal of law enforcement is the right to test your breath or blood to determine if you have a blood alcohol content (BAL) of .08 or greater, .08 being the legal limit in Illinois. 625 ILCS 5/11-501 If the results of such tests show a reading of at least .08, this information can be used in two different ways.

First, such a reading can be grounds to impose a driver’s license suspension (known as a statutory summary suspension). In an effort to avoid giving the police that information, you may be tempted to turn down the tests.

Since a valid breath test requires you to blow into a tube, something that it is physically impossible to force a person to do, any forced testing must be done by strapping you to a gurney and drawing blood. As the law now stands in Illinois, it appears that the police may not do so without first obtaining a search warrant from a judge.

In general, the Fourth Amendment to the United States Constitution requires the police to obtain a warrant in order to conduct a search of your person, papers or other things. However, courts have carved out a number of exceptions to the warrant requirement.

One such exception involves “exigent circumstances”. These simply refers to the situation in which, if the police are required to contact a judge in order to request a search warrant, by the time the warrant issues, the evidence they hope to seize is in danger of being destroyed. The classic case of an exigency exemption is to avoid the suspect from flushing the drugs down the toilet.

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Posted in: DUI
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Illinois law makes it illegal to drive under the influence of alcohol. (DUI). Penalties for a first offense can be as much as a fine of $2,500 and up to 364 days in the county jail, or a combination of the two. 625 ILCS 5/11-501
A conviction for DUI requires the Illinois Secretary of State to revoke your driver’s license. A driver’s license revocation nullifies your right to drive in Illinois. 625 ILCS 6-208

In order to be entitled to drive without any restrictions, you must have a driver’s license hearing with the Illinois Secretary of State. In other words, restoration of full driving privileges is not automatic. Christiansen v. Edgar, 209 Ill. App. 3d 36, 153 Ill. Dec. 738, 567 N.E.2d 696 (4 Dist. 1991)

Revocations vary in length and depend upon your previous DUI convictions, if any. Keep in mind that in making these calculations, any dispositions of court supervision are not counted, as supervision is not a conviction.

The first DUI conviction will bring a one year revocation. A second DUI convictions that occurs within 20 years of the first one leads to a revocation for 5 years.

A third conviction nets a 10 year revocation. A fourth conviction can result in a lifetime revocation if any arrest that results in a conviction occurred after January 1, 1999.

The Secretary of State does not track court cases; therefore it is the responsibility of the Circuit Clerk to notify him of any DUI conviction. Within about 10 days of being notified of a DUI conviction, the Secretary of State will revoke your driver’s license.

In many situations, you may apply for a Restricted Driving Permit (RDP) while the revocation is in effect. The RDP is not a “license” but rather is permission to drive, for limited purposes, while your are ineligible to apply for a full license (during the revocation window of 1, 5 or 10 years). But someone with a lifetime revocation due to four convictions cannot apply for an RDP either.

There are a few situations in which you must wait before you can apply for an RDP. If this is your second or third conviction (meaning a 5 or 10 year revocation), you cannot apply for an RDP during the first year of the revocation. If you are convicted of aggravated DUI that causes a death, you cannot apply for an RDP until 2 years after the revocation, or 2 years after you are released from incarceration, whichever is later.

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At one time, an arrest for Driving Under the Influence (DUI) was not that big of a deal. Many such charges were reduced to reckless driving so that the driver did not lose his or her driver’s license.

Even when a DUI conviction did occur, there was normally a small fine and after a short period of time, the driver was allowed to drive again. In addition, breath tests were optional and there was no downside in not agreeing to take a test.

The legal blood alcohol level (BAL) was high. Finally, even if a breath test existed, the state was still required to prove you were intoxicated at the time you were driving the car.

Today, the consequences of a DUI arrest, much less a conviction, are more serious. The police have developed more sophisticated investigative tools, such as the Horizontal Gaze Nystagumus (HGN), the walk-and-turn and the one-legged stand.

These are tests that, law enforcement alleges, are designed to determine whether your ability to perform physical tasks required to drive are impaired by alcohol. Results of your performance on these tests are often recorded on video cameras affixed to police cruiser dashboards.

These recordings are admissible in court. Furthermore, Illinois law allows police to ask you to provide a breath sample into a Preliminary Breath Test (PBT) in order to help in establishing whether there is probable cause to believe you may be under the influence of alcohol.

While PBT results are admissible to help the state establish that the police officer had a basis to believe you might be under the influence, the results themselves cannot be used to establish actual guilt. People v. Rose, 268 Ill. App. 3d 174, 205 Ill. Dec. 574, 643 N.E.2d 865 (4 Dist. 1994) Moreover, the accused is entitled to refuse to take the PBT and there is no penalty for doing so. 625 ILCS 5/11-501.5

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On a daily basis, we read and hear about arrests for Driving Under the Influence (DUI). After an arrest occurs, the case follows two tracks.

The first track has to do with the driver’s license suspension from a DUI arrest. In connection with a DUI arrest, you will be asked to submit to a portable breath test (PBT).

The results of a PBT cannot be used in court as direct evidence of your blood alcohol content (BAL), or in other words, whether you have enough alcohol in your body to be over the legal limit of .08. 625 ILCS 5/11-501.5 However, the officer may rely upon the PBT results, along with standardized field sobriety tests and other physical characteristics (bloodshot eyes, odor of alcohol, slurred speech, weaving and others) to determine if there is probable cause to believe you should be arrested for DUI.

Once the officer, relying upon the above factors, believes there is probable cause, you will be placed under arrest for DUI. After that you will be asked to submit to a “chemical test”, either a blood draw or by the use of a machine that is purportedly certified for accuracy and administered by someone with training in doing so. Consequently, those results are admissible in court to prove your BAL. 625 ILCS 5/11-501.2

A BAL of .08 or greater will result in a driver’s license suspension for a specific period of time, unless you are able to prosecute a rescission of the statutory summary suspension. You also have the right to refuse testing unless there is an accident with serious injury or unless you are taken to the hospital for medical treatment.

The length of the summary suspension depends upon two factors, those being whether you agreed to the test and whether it has been greater or fewer than five years since you received a previous DUI (if any). If you have had a DUI within the previous five years and you register .08 or higher, your suspension will last for one year. If you do not submit to a chemical test, you will be suspended for three years. You cannot drive for any reason, even on a restricted basis, during the suspension.

If this is your first DUI or if the most recent prior DUI happened more five years ago, then a refusal will result in a one year suspension and a test of .08 or higher will lead to a six month suspension. After the first thirty days of the suspension, you would be eligible for a Monitoring Device Driving Permit (MDDP).

The second prong of a DUI arrest involves the crime of DUI. It is a crime because if you are convicted, you are subject to fines and or jail time.

Before the government can take away your property or liberty, they must prove, beyond a reasonable doubt, that you committed the crime of which you are accused. Thus, unlike the driver’s license suspension, which is automatic, the state must prove certain things before you can be convicted of DUI.

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The Illinois Secretary of State is required to revoke the driver’s license of anyone who is guilty of committing the offense of Driving Under the Influence (DUI) while operating a motor vehicle in this state. Moreover, even if you do not live in Illinois or have an Illinois driver’s license, the Secretary of State will revoke your driving privileges after a DUI conviction, meaning you may not drive in Illinois even if you have a valid driver’s license issued by another state. 625 ILCS 5/6-205

Furthermore, your driver’s license and driving privileges will be revoked if the Secretary of State receives a report of a conviction stemming from a DUI offense committed in another state, if at the time of the offense, you were a resident of Illinois or held an Illinois driver’s license. Most states have agreed, via the Interstate Driver’s License Compact, to report convictions to Illinois, and even states that are not Compact Members may report those convictions voluntarily.

Illinois has an interest in making certain that those who live in, drive in or hold a license issued by, Illinois do not endanger the health and safety of its citizens by driving drunk. To revoke their right to drive in Illinois makes sense.

But even someone who now lives in another state and whose privileges Illinois revoked under any of the above circumstances-DUI in Illinois or DUI in another State while having an Illinois license or being an Illinois resident-and who has no interest in ever driving in Illinois or having an Illinois driver’s license may still be required to clear the Illinois revocation, or “lift the hold”.

The reasons for this are two-fold. First, the Compact stipulates that one state may not issue a driver’s license to someone who is revoked in another state until at least one year has passed since the revocation occurred. 625 ILCS 5/1-117 But there are also U.S. Department of Transportation requirements that prohibit one state from issuing or renewing a driver’s license to its own residents if the applicant has a hold from another state due to a DUI offense.

It does not matter how long ago the revocation on your Illinois driver’s license occurred. Nor is it relevant that you did everything your new state required of you, or that you completed all the requirements of the court that processed the DUI that led to your Illinois revocation There are no double jeopardy or statute of limitations defenses.

You cannot always rely upon your DMV driving records to determine your status. Illinois may find other DUI offenses that were expunged from your record. You are still required to deal with them.

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