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How a driving crash that’s not the driver’s fault can turn into a felony charge against the driver

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).  The officer would next observe your actions at the initial approach.  Do you seem confused, do you appear to know where you are and where you have been and are going?

Any  indications of slurred speech, bloodshot eyes or an odor of alcohol would be more evidence of “affected by”.  Moreover, the officer would look for signs of difficulty in locating your license, insurance card and registration. Your ability to carry on and track a conversation and to make sense would come into play.

After being asked to leave the car in order to perform standardized field sobriety tests (SFST), the police would be carefully watching for any difficulty in getting out of your vehicle and in walking behind it to the front of the squad car.  They would be looking for signs of stumbling, swaying and leaning on your vehicle for balance.

The police would put you through the SFTS. These include the Horizontal Gaze Nystagmus, the Walk and Turn and the One-legged Stand.  Finally, you would be asked to take a Preliminary Breath Test (PBT).

A DUI arrest can also occur if you are alleged to be under the influence of any drug, whether legal or illegal, and whether prescribed or not.  This does not mean you cannot drive while taking prescription medication. But you cannot drive if the medication impairs your ability to do so safely.

Inhaling intoxicants (“huffing”) can also lead to a DUI charge. And finally, “any amount” of an illegal drug in your system, even without any evidence of impairment, remains illegal in Illinois, despite the medical marijuana law.

A “plain vanilla DUI” is a Class A misdemeanor punishable by up to 364 days in jail and or a fine of no more than $2,500.00. (730 ILCS 5/5-4.5-5.5 )  However, there are certain situations, known as aggravated DUI, in which DUI becomes a felony.

One such aggravating factor is that a crash occurred in which there was a fatality. In that case, the state must prove that the intoxicated driver “proximately caused” the accident.

But even though in the article above the deceased person was at fault in the crash, the state was able to charge the driver with a felony not because of the death and accident but because in committing the offense of DUI, the driver was not insured, which is also a felony, accident or no accident.

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