Articles Posted in DUI

If you are charged with Driving Under the Influence (DUI) in Illinois, and it is your first offense, you may be tempted to accept whatever offer the prosecutor makes to you. This may not be a wise choice once you understand the consequences of an Illinois DUI.

You are headed home one evening after stopping for a couple of drinks after work. A peace officer, based upon an anonymous tip from someone in the restaurant you just left that a car matching the description of yours just left the parking lot with a drunk driver behind the wheel, activates his siren and emergency lights and orders you to pull up to the curb.

This very well could be an illegal stop, since the tipster was anonymous and therefore the police had no reason to believe the information the tipster provided was reliable, and since the officer has no reason independent of this anonymous tip to suspect you had committed, or were about to commit, a crime, as required under the United States Supreme Court case known as Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968)

If the initial stop was illegal, then any evidence gathered as a result of the stop is also illegal and cannot be used in court against you. Without this evidence, it would impossible for the police to prove the charges against you.

Blocking illegal evidence from being introduced into a DUI case is known as the “exclusionary rule”. If you plead guilty to the DUI, you give up all your constitutional rights, including your right to assert the exclusionary rule and the right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution.

Change the facts a little and suppose there was no tip and that the officer saw you make a turn without signaling, a perfectly valid basis upon which to stop you. The police cannot just come up and start asking you DUI-related questions after stopping you.

They first must have a reason to believe you may be impaired. Failure to do so would raise questions of “probable cause” to make an arrest. Once again, though, if you plead guilty, you give up your right to raise this defense.

Once the officer has made a determination to investigate you for possible DUI, there is no doubt that he will ask you to take a breath test to determine if your blood alcohol content is .08 or higher, the legal limit in Illinois. 625 ILCS 5/11-501. If you register .08 or higher, or if you elect not to provide a breath sample, the officer will issue you a notice of statutory summary suspension (SSS).

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For an Illinois DUI (Driving Under the Influence) arrest to be legal, the police must first have a valid reason to come into contact with you. Under the “reasonable suspicion” standard of Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968), a police officer may stop a person in a public place for a reasonable period of time if the officer reasonably infers that the person committed, is committing or is about to commit, an offense, including traffic offenses. (Codified in Illinois at 725 ILCS 5/107-14)

There are exceptions to the reasonable suspicion requirement. For one, if the member of the public engages in a voluntary encounter with the officer, the person has given up his Fourth Amendment privacy rights. Another exception to the reasonable suspicion requirements is the “community caretaking” function. This could include assisting a person whose vehicle is broken down or who appears to be in physical distress. People v. McDonough, 239 Ill. 2d 260 (2010).

Random license plate checks are another exception to the reasonable suspicion requirement. One other example of a valid stop without reasonable suspicion involves roadblocks, provided that certain criteria are met.

However, the police may not act based upon a “mere hunch” of criminal activity. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996). Therefore, a stop based upon a ‘suspicious vehicle”, or a vehicle leaving a closed business parking lot, or a car parking in a no-parking zone, are illegal stops.

In the case of an illegal stop, the defendant should file a motion to suppress (throw out) the evidence gathered from the moment of the illegal stop. While this does not specifically require the judge to “throw out” the case, it in effect forces the prosecutor to dismiss the charges, as the evidence to prove them has been blocked from being brought forward.

A statutory summary suspension (SSS) becomes a factor in most Illinois DUI arrests. The driver is pulled over, the officer suspects he has had too much to drink and he requests a breath test. If the driver agrees and registers above .08, a suspension of his driver’s license will begin automatically on the 46th day following the arrest (625 ILCS 5/11-501.1(h)) unless the suspension is rescinded (thrown out). And if he does not agree to a test, he will be suspended, for a longer period of time than if he had agreed to a test.

The law sets forth specific grounds (reasons) for which a suspension can be rescinded. Those grounds are at 625 ILCS 5/2-118.1 and are as follows:

You were not properly placed under arrest for a DUI offense as evidenced by the issuance of a Uniform Traffic Ticket;
The arresting officer did not have reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence;
The arrest officer did not properly warn you of the consequences of taking or refusing to take a breath or blood test;
You did not refuse to submit to the test;
You took the requested test and had a blood alcohol content of under .08.

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Just about any police officer that receives training in Driving Under the Influence (DUI) investigations has been instructed in the use of the standardized field sobriety tests (SFST). Many are familiar with the concept of SFST from Hollywood productions, usually in the comedy genre.

The video, while humorous, does illustrate the supposed evolution of DUI law. At one time, it was the Wild, Wild West when it came to what SFST were administered and how they were conducted and graded. There was nothing to show that the tests proved anything about whether or not the subject was impaired by alcohol, or how the tests should be administered.

There are two different ways to charge DUI, one being actual impairment and the other being driving with a blood alcohol level (BAL) of .08 or greater, without the need to prove impairment. 625 ILCS 5/11-501(a)(1)(2); 625 ILCS 5/11-501.2 There are driver’s license penalties associated with submitting to a breath or blood tests and registering over .08, or refusing to submit. In addition, the results of the test, or a refusal to agree to provide the tests, are admissible in the DUI prosecution. 625 ILCS 5/11-501.2
The field sobriety tests used in the past included reciting the alphabet, finger-to-nose, walk-and-turn (WAT), counting backwards, Romberg, the one-legged-stand (OLS), a portable breath test (PBT) and the Horizontal Gaze Nystagmus (HGN). The National Highway Traffic Safety Administration (NHTSA) claims it commissioned studies that validated the WAT, OLS and HGN as reliable indicators that someone is likely to have a blood alcohol level of .08 or greater, which is the standard in all 50 states, thanks to federal agencies like NHTSA.

So the tests are not designed to detect actual impairment but rather to assess the likelihood that someone is at or above .08. However, the tests are used when the only charge is actual impairment, in other words, in those case where there is no BAC reading.

Some consider the SFST to be “junk science” or in other words, science bought and paid for my NHTSA. Essentially, the argument goes, NHTSA came up with a theory and then paid someone with a scientific background to validate the theory.

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In the state of Illinois, the offense of Driving Under the Influence (DUI) is a crime. Assuming this is a first offense and there are no aggravating factors, a conviction for DUI is a Class-A misdemeanor. 625 ILCS 5/11-501(c)(1) The maximum criminal punishment is a fine of up to $2,500 and/or up to 364 days in the county jail. 730 ILCS 5/5-4.5-55
The DUI arrest and the conviction also have driver’s license consequences. For a first DUI offense, your driver’s license is subject to a suspension for six months if you submit to a blood or breath test that reveals a blood alcohol contents of .08 or higher. Should you decide not to provide a sample, your driver’s license is subject to a suspension for twelve months. 625 ILCS 5/6-208.1
The suspension, known as a Statutory Summary Suspension (SSS), begins on the 46th day following the date on which the arresting officer serves you with a notice of SSS, which usually occurs at the time of the DUI arrest.625 ILCS 5/11-501.1(h) For the first thirty days that the suspension is in effect, you are prohibited from driving.

Thereafter, you are entitled to a Monitoring Device Driving Permit (MDDP) so long as you were over 18 at the time of the offense, no serious injury resulted, your license was valid and you do not have a previous arrest for reckless homicide. 625 ILCS 5/6-206.1 At the end of the suspension period, your driving privileges may be restored, unless that are otherwise invalidate, such as by being convicted of the DUI for which you were arrested.

A DUI conviction results in a revocation of your driver’s license. For a first conviction the revocation is for one year. 625 ILCS 5/6-208 This does not mean that at the end of the year, you automatically get your license restored.

A revocation means that your current license is permanently invalid; in fact, the Secretary of State shreds it. You must, in order to restore full driving privileges, have a Secretary of State driver’s license hearing. However, after your SSS ends, you may apply for a Restricted Driving Permit (RDP) while the revocation is still in effect. This will allow you to drive for limited purposes, such as work, doctor appointments, Alcoholic Anonymous, school and day care.

A disposition of court supervision is a means to avoid the driver’s license revocation and also possible jail time. With a court supervision disposition, you plead guilty to the DUI offense but the judge withholds entering a judgment of conviction and puts you under a supervision order for a given period of time.

If you obey the supervision order, which typically includes paying fines, completing alcohol counseling, attending a Victim Impact Panel and staying out of trouble, the charges are dismissed. You are not therefore convicted of DUI. 730 ILCS 5/5-6-3.1; Kirwan v. Welch, 133 Ill. 2d 163, 139 Ill. Dec. 836, 549 N.E.2d 348 (1989)

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Illinois law provides that a first time offense for Driving Under the Influence (DUI) is a Class-A misdemeanor if there are no additional circumstances 625 ILCS 5/11-501(c)(1) The maximum criminal penalty is a fine of up to $2,500 and/or up to 364 days in the county jail. § 730 ILCS 5/5-4.5-55
However, in addition to any other penalties the judge may impose, if there are any passengers in the vehicle under the age of 16 years at the time of the offense, the judge is required to impose 6 months of county jail time, an additional mandatory minimum fine of $1,000, and 25 days of community service in a program benefiting children. Furthermore, if the blood alcohol content (BAC) at the time of the arrest is .16 or higher, the offender will be sentenced to a mandatory minimum of 100 hours of community service and a mandatory minimum fine of $500.

DUI can also be a felony, known as “aggravated DUI” under a number of scenarios set forth in 625 ILCS 5/11-501(d). Among the aggravating factors are that the person, while under the influence: was driving a school bus with children under 18; caused death or serious injury from a crash; caused a crash in a school zone resulting in injuries; drove when his driver’s license was revoked, suspended or otherwise invalid; knowingly drove without insurance; and caused a crash while transporting a person under the age of 16 who suffers injuries.

Another felony enhancement arises if the defendant has “violated” the DUI laws on two prior occasions. Although court supervision is not a conviction, since the aggravated DUI law merely requires a prior “violation”, court supervision counts towards a felony enhancement. People v. Lambert, 249 Ill. App. 3d 726, 188 Ill. Dec. 909, 619 N.E.2d 534 (3 Dist. 1993) In addition, out-of-state DUI offenses are included.

An Illinois DUI offense also carries with it noncriminal penalties, known as “administrative sanctions”, which is another way of referring to driver’s license consequences. A DUI conviction results in a revocation of your license.

Because a conviction leads to a revocation, the Illinois Secretary of State will take your driver’s license out of circulation and also take away your right to drive in Illinois, notwithstanding the fact you may have a license issued by another state or country. You may only obtain restoration of a revoked driver’s license by having a driver’s license hearing with the Secretary of State.

A driver’s license suspension is imposed in connection with the DUI officer’s request that you provide a blood or breath sample to determine your BAC at the time of a DUI arrest. A refusal to test, or testing with a BAC of .08 or greater, results in a suspension of your driver’s license.

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Sandra Vasquez of Aurora Illinois was operating a motor vehicle that was involved in a fatal crash that killed 5 teenagers in 2007. It was determined that Vasquez was driving under the influence (DUI).

The DUI law lists a number of aggravating factors (“aggravating” meaning facts exist that make the offense more serious than the typical case). One of those factors in aggravation is that the DUI cause a fatality. 625 ILCS 5/11-501(d)(2)(G)

Most cases of aggravated DUI are a Class-2 felony. As such, the term of incarceration is 3-7 years but probation (no jail) is an option. § 730 ILCS 5/5-4.5-35. However, when the DUI involves a fatality, it is a felony with an extended term (extra prison time) of 3-14 years if there is a single death and 6-28 years for multiple deaths, as in Vasquez’s case.

Furthermore, a fatality DUI offense is not subject to probation unless the court finds that “extraordinary circumstances” exist. Vasquez claimed extraordinary circumstances existed because she had no prior record and she worked with dementia patients.

In a criminal case, the Seventh Amendment to the United States Constitution gives the defendant (the accused) the right to a trial by jury. However, while the jury decides guilt or innocence, in Illinois, the judge determines the sentence.

The judge for Vasquez determined that extraordinary circumstances did not exist and sentenced her to 15 years in prison. Vasquez, as is her right, appealed.

The Illinois court system begins with numerous trial courts in all 102 counties of the state. Everybody has an automatic right to appeal an unfavorable ruling to one of the five appellate courts located in Chicago, Springfield, Mt. Vernon, Elgin and Ottawa.

An appeal is assigned to one of the five appellate courts depending upon which trial judge heard the case. At times, this results in conflicts among the appellate courts, all of which issue written decisions.

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The state of Illinois has a law that makes it illegal to drive under the influence (“DUI”). 625 ILCS 5/11-501. According to the Illinois Secretary of State, his office received reports of 49,100 DUI arrests in Illinois for the year 2010.

In the early days of the DUI laws, the only prohibition was driving under the influence of alcohol. The state was required to prove that alcohol affected your ability to drive safely.

In fact, the short cut name for DUI was “drunk driving” and the legal name was “driving while intoxicated”. This wording led the general public, including jurors, to infer that in order to be guilty of DUI, you had to be “stumbling drunk”.

The legal limit was a very high .15 blood alcohol content, which was later lowered to .10 and finally, in July 1997, it was reduced to the current .08. 625 ILCS 5/11-501(a)(1) The name was changed to “driving under the influence”.

The police had always had the right to ask you to take a blood or breath test. However, there was no driver’s license penalty for refusing, and the jury was not told that you had refused.

There were no established standards for performing standardized field sobriety tests (SFTS), including the officer waving the pen back and forth, walking a straight line and the one-legged stand, or for explaining the results to the jury.

All of that has changed under today’s DUI laws. If you take a test and you register .08 or higher, your driver’s license is subject to a suspension. If you do not take a test, the suspension is twice as long and the state is allowed to argue to the jury that you did not take the test because you knew you were drunk. The suspension applies even if the DUI is thrown out.

There are also products other than alcohol that can lead to a DUI arrest. It is illegal to drive under the influence of a drug or combination of drugs other than alcohol (alcohol itself is a drug). Thus, it’s DUI to drive high on cocaine for instance.

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