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Aggravated DUI and criminal penalties

It should come as no surprise to anyone that Driving Under the Influence, or DUI, is illegal.  And because the law assigns criminal penalties, which can include both fines and jail, as well as probation, community service, alcohol evaluations and classes and Victim Impact Panels, to a violation of the DUI laws, it constitutes a crime.

However, the prospect of jail time is on the table only if there is a DUI conviction.  DUI supervision may be an attractive sentencing option for a number of reasons.

A sentence of court supervision can never involve incarceration (jail or prison).  (People v. Roper, 116 Ill. App. 3d 821, 452 N.E.2d 748, 72 Ill. Dec. 495 (1983))

However, receiving supervision requires the accused (known in legal terminology as the “defendant”) to plead guilty to DUI.

The judge thereafter imposes certain requirements on the defendant that the defendant must complete within a period of time that the judge assigns, not to exceed two years. Conditions include obtaining a drug and alcohol evaluation, completing classes to help avoid any further DUI offenses, paying fines and incurring no additional legal problems during the terms of the supervision.

If the defendant completes these requirements, a conviction never comes about and the case is dismissed.  There is no conviction.  As a result, the defendant does not lose his or her driver’s license. Although the case is dismissed if the driver completes supervision successfully, the supervision becomes a permanent part of the driving record (and can never be expunged). This is important because supervision is not available for someone who has ever had a previous DUI conviction, a DUI that was reduced to reckless driving or a previous disposition of DUI supervision. It is a one time deal.

If a defendant is not eligible for supervision, or if the judge does not agree to supervision, a  conviction is in order. A first time DUI conviction, without any aggravating factors, is a misdemeanor. 625 ILCS 5/11-501.

However, the Illinois Vehicle Code includes a long list of aggravating factors that can turn a DUI into a felony, a felony that in some cases is not eligible for probation. A third DUI violation (which includes supervision) is a Class 2 felony (3 to 7 years, probation available but if BAC is over .16, a mandatory minimum of 90 days in jail).

A fourth violation of the DUI law is a Class 2 felony, but probation is not available.

A fifth DUI violation is a Class 1 felony, for which probation is not available. The prison term for a Class 1 felony is 4 to 15 years.

A sixth or more DUI violation is a Class X felony. This carries a sentence of 6 to 30 years with no probation. It is the highest class of felony in Illinois and was initially aimed at crimes such as rape, armed robbery, treason, and production or sale of narcotics when it was placed into law (to much fanfare) in 1978.

A first time DUI offense is also a felony if while, in the commission of a DUI: the person was driving a school bus with children 18 or under on board; the person caused an accident that resulted in great bodily harm to another; the person has previously been convicted of reckless homicide; the person was driving in a school speed zone and caused an accident that resulted in great bodily harm to another;

The person caused an accident leading to death (in which case probation would not be available absent “extraordinary circumstances” and the sentence shall be 3-14 years for one death and 6-28 years for two or more deaths); the person committed the DUI at at time his or her license was revoked or suspended due to a previous DUI;

The person did not have a valid license or permit; the person did not have valid insurance; the person caused bodily harm to a passenger age 16 or less; or the person committed a second DUI while transporting a child of the age of 16 or fewer years.

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