A news media outlet filed a report concerning a DUI offense that occurred in Illinois. The report indicates that 11, resulting in the death of a passenger and injuries to other passengers.
The driver is charged with what is known as “aggravated DUI”. Under Illinois law, aggravated DUI is a felony. (625 ILCS 5/11-501(a)(1))
A standard DUI is a class-A misdemeanor, the highest level misdemeanor, just a step below a felony. The maximum penalty for a Class-A misdemeanor is 364 days in the county jail and or a fine of no more than $2,500. (730 ILCS 5/5-4.5-55)
The term “aggravated DUI” means that in committing a DUI, the driver did something while driving drunk that makes his or her conduct more serious than a standard DUI, so much so that it is considered felonious. There is list of aggravated DUI offenses at 625 ILCS 5/11-501(a)(1).
The lowest level felony (Class-4) is 1-3 years in prison. A Class-3 is 2-5 years. The sentence for a Class-2 felony is 3-7 years and a Class-1 is 4-15 years.
Each felony can also carry fines and in general, subject to an ever-growing list of exceptions, probation instead of or in combination with, prison, is available. On the other hand, for a Class-X felony, probation is not available and the term of imprisonment is 6-30 years. (730 ILCS Chapter V)
Aggravating factors include a third DUI “violation”. Since the law does not require a previous conviction, but merely a “violation”, a prior court supervision for DUI, while not a conviction, is a “violation” and is therefore an aggravating factor. (People v. Sheehan, 168 Ill. 2d 298, 659 N.E.2d 1339, 213 Ill. Dec. 692 (1995))
A third violation is a Class-2 felony. Additional violations and other aggravating factors (BAC of .16 or higher, children under 16 in the vehicle) can result in higher-level felonies, all the way up to Class-X, along with mandatory minimums, higher fines, community service and other politically popular add-ons.
If the DUI results in “great bodily harm or permanent disability or disfigurement to another”, the judge may impose probation. However, if the judge determines that prison is appropriate, the sentence is 1-12 years.
A person who is convicted of DUI and who has been previously convicted of a DUI that resulted in death is guilty of a Class-3 felony. However, probation is not available.
If a person is convicted of a DUI that resulted in the death of one person, the offense is a Class-2 felony which as previously indicated, would typically mean 3-7 years with the possibility of probation. But in the case of a fatality, the sentence is 3-14 years. Probation can apply only if the judge finds that “extraordinary circumstances” require probation.
If two or more people die, the prison sentence must be 6-28 years. Probation applies only if there are extraordinary circumstances that require it.
In the case mentioned at the top of this post, it is not clear if the referenced blood draw of .11 was the medical draw or the draw taken at the behest of the police. When the police later draw blood, it is done for purposes of the DUI and the whole blood will be analyzed as the law requires.
When the hospital takes blood at the emergency room for the purpose of helping the doctor render treatment, it is almost always serum, which contains water. This improperly raises the blood alcohol level. (People v. Thoman, 329 Ill. App. 3d 1216, 770 N.E.2d 228, 264 Ill. Dec. 334 (2002))
In the case of a .11 serum reading, the legal BAC, all other things equal, would be no greater than .09 and could be even less. The legal limit is .08. Given that the accused is facing substantial prison time, his attorneys can be expected to mount a vigorous attack on the blood reading.