Published on:

Determining when an Illinois driver arrested for DUI may drive legally

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.

After the arrest, the driver will be asked to submit to testing using one of two methods, and the results of those tests can be used to prove the BAL.  The test will be either a blood test which measures the blood alcohol content directly, or a breath test, which inferentially determines the BAL based upon the air-alcohol content in a person’s lungs.

The accused has a choice of whether or not to submit to testing. Since refusing the test makes it impossible for the state to prove that a person was over the limit, at first blush, that would seem to be the wisest choice. However, there are some caveats and to understand them, one must be familiar with certain terminology used in the Illinois Vehicle Code.

A statutory summary suspension (SSS) is a temporary deprivation of driving privileges due to a DUI arrest.  A first offender for purposes of an SSS is someone who has not had a DUI arrest in the previous five years. Thus, a person could have more than one DUI and still be considered a first offender for the SSS rules.

A first offender who is arrested for a DUI in Illinois and who takes a test and reads at least .08 will be suspended for six months. A first offender who does not take a test is looking at a twelve month suspension.  (625 ILCS 5/6-208.1)

The SSS starts on the 46th day after the arresting officer serves the driver with notice, which usually occurs at the time of the arrest.  During the first thirty days after the SSS begins, no driving privileges are available.

For the remaining five or eleven months, the driver is entitled to unlimited driving privileges provided any vehicle he or she operates is equipped with an interlock device which prevents the vehicle from starting if the device detects excessive alcohol in the driver’s breath.  This permit is known as a Monitoring Device Driving Permit (MDDP).

A non-first offender (a DUI in the previous five years) who submits to testing will be subject to an SSS for one year. One who refuses will receive a three year suspension.

Neither one is entitled to an MDDP or to a hardship license from the Illinois Secretary of State.   There is simply no driving relief available unless a judge orders a rescission of the SSS. Because of these sometimes counterintuitive rules, it’s not unheard of for someone with three DUI arrests to be entitled to drive during their SSS yet someone with two to be barred from doing so.