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“First offender” has several meanings under Illinois DUI Law

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.  How long the pause will be depends upon two factors: whether there was a test or a refusal and whether the driver is a “first offender”.  In the context of how long the suspension will be, “first offender” means that within the previous five years the driver has not been convicted of DUI, received court supervision for DUI or incurred an SSS–unless the driver took a breath test and was found not guilty of the DUI.  (625 ILCS 5/11-500)  In short, there is a five-year “look back” for this type of first offender.

A first offender who take the test incurs an SSS for six months; one who refuses receives an SSS for 12 months. After a waiting period of thirty days, these first offenders are entitled to full driving rights during the reminder of the SSS but must install an interlock device that prevents the driver from starting the car if after blowing into a tube the BAC exceeds .05.  This special type of driving privileges is known as a Monitoring Device Driving Permit, or MDDP.

In contrast, a non first offender is not entitled to any type of driving privileges during any portion of an SSS. For a non first offender who tests, the SSS would be for 12 months. A non first offender driver who refuses will not be able to driver for 3 years.

In terms of the criminal law. someone with a previous DUI conviction or supervision can never be a first offender.  Therefore, the sentencing option of court supervision is not available.  (730 ILCS 5/5-6-1)  Supervision has two primary advantages.  There can be no jail time. Second, it is not a conviction.

Consequently, it avoids a driver’s license revocation.  A revocation voids the driver’s license rather than just a pause as applies to a suspension.  Restoration of driving privileges after a conviction requires a driver’s license hearing.

At the driver’s license hearing, any previous DUI offenses, no matter how long ago they occurred, prevents the applicant from being a first offender. As a result, the petitioner must be classified at least significant risk and undergo 30 hours of alcohol classes.

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