Articles Posted in DUI

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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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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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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Illinois, as is the case with most states and the federal government, makes it illegal to possess marijuana. A few states recognize medicinal marijuana, which can be used with a prescription.

A couple of states recently decriminalized (made legal) marijuana use. A topic for another time is how those states will square their laws with the fact that marijuana possession remains a federal offense should the Federal Government choose to press charges.

That aside, driving under the influence (DUI) is illegal in all 50 states, including Illinois. 625 ILCS 5/11-501 While the term used is “driving” under the influence, the specific law makes it illegal, while “under the influence”, to drive or to be in “actual physical control” of a “vehicle” anywhere within the State of Illinois.

A “vehicle” includes any device upon which property or person may be transported, excluding human-powered devices. 625 ILCS 5/1-217 Therefore, it is not illegal to operate a bicycle while under the influence. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV is, however, covered, even though you are not required to have a driver’s license or license plate to operate one.

“Under the influence” does not require the State to prove you were “drunk, intoxicated, buzzed” etc. Rather, a person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care IPI (Criminal) 23.29 In essence, you may convicted of DUI based upon nothing beyond proof that alcohol reduced your ability to think and act normally.

You may also be convicted of DUI in a way that does not require proof of actual impairment. If the state can show through chemical testing that your blood alcohol level at the time you were driving or in actual physical control of a vehicle was .08 or higher, you are just as guilty as though the State had proven your ability to drive was impaired due to alcohol.

In these blood-alcohol level type of cases, the defense must attempt to attack the manner in which the test was administered or assail its general reliability to prove accurate results, or otherwise show a judge or jury that the police engaged in other irregularities that tainted the evidence or that violated your Constitutional rights. While evidence of your apparent intoxicated or sober state are not required in this type of prosecution, such evidence can either support or erode the jury’s confidence in the chemical test results that the state proffers as proof of your being .08 or above.

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There are approximately 40,000 Illinois DUI arrests each year. And that is just one state.

Over the course of an entire year, in the nation as a whole, there must be hundreds of thousands of such arrests. In fact, we personally represent many Illinois residents who have been convicted of a DUI while driving in another state and who, because of the conviction, lose their Illinois driving privileges, as provided for by law. 625 ILCS 5/6-206(a)(6) and 6-203.1
Yet whenever a well-known or prominent individual receives a favorable DUI outcome, a segment of the population, despite not knowing all the facts, cries “foul”! Many do not appreciate the fact that while there may be a rare number of cases in which “the fix is in”, the more probable explanation in the vast majority of dismissals is that the person had effective legal representation, coupled with factual and or legal deficiencies in the prosecutor’s case that the attorney was able to exploit.

If celebrity and clout were the ticket to getting away with DUI, the likes of Lindsey Lohan, Mel Gibson and Bobby Brown would not have been convicted. A recent situation in Washington State is instructive.

A judge was arrested for DUI. One thing to mention is that county prosecutor, whose office appears before the judge, removed himself from the case to avoid potential conflicts of interest. An outside lawyer who does not have contact with this judge’s court system, reviewed the evidence. Based upon that remove, he submitted a written report explaining in detail why he declined to prosecute the judge.

One means of attacking a DUI arrest is that the officer had no reasonable basis to initiate the stop. Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968) In that regard, the police were on solid grounds. The officer observed the vehicle weaving for a substantial distance, the driver failed to signal lane changes and the vehicle was traveling well above the posted speed limit. All of these constitute traffic code violations. Even if the driver in fact was not guilty beyond a reasonable doubt of committing these offenses, the arresting officer had a reasonable basis to believe the driver had violated the law.

The next step in the process is to determine whether the officer could escalate a simple traffic stop into a DUI offense? The police cannot pull you over for a traffic ticket and then immediately start investigating you for DUI.

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