Illinois DUI Lawyer Blawg

For anyone 21 or older, the mere act of consuming alcohol to the point of physical impairment is legal. There really is no such thing as being “legally intoxicated”.

What is against the law is operating a motor vehicle with enough alcohol in your bloodstream to be impaired. The offense of Driving Under the Influence (DUI) is defined in Illinois law. 625 ILCS 5/11-501.

Illinois has accepted that if you have a blood alcohol content (BAC) of .08 or higher, you are a sufficient risk to the public safety and should not be driving. It is not necessary for the state to prove that you are in fact impaired.

The mere fact of a .08 or greater BAC is illegal if proven. 625 ILCS 5/11-501(a)(1); People v. Ziltz, 98 Ill. 2d 38, 74 Ill. Dec. 40, 455 N.E.2d 70 (1983). This is known as a “per se” violation.

There is also a separate DUI law under which the state must prove actual impairment. This is the charge the state must sustain if you refuse to provide a blood or breath sample upon request, as provided for by law. 625 ILCS 5/11-501.1
The law itself simply states that you shall not drive or be in actual physical control of any vehicle within the state of Illinois while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) This seemingly simple sentence raises a host of questions.

First, is it illegal to drive drunk in private property? The answer is “yes”. People v. Guynn, 33 Ill. App. 3d 736, 338 N.E.2d 239 (3 Dist. 1975); City of Highland Park v. Block, 48 Ill. App. 3d 241, 6 Ill. Dec. 285, 362 N.E.2d 1107 (2 Dist. 1977). The reason for this is that, unlike the statutory summary suspension (SSS) law, which only applies to what happens on the public highways, the language of the DUI law refers to anywhere “within the state of Illinois” and obviously includes private property.

Another aspect of a DUI involves driving or in “actual physical control” of a motor vehicle. You do not have to be “driving” the vehicle.

Many arrests occur while the driver is “sleeping it off”. Urban legend has it that to prove actual physical control, the police must find you behind the wheel with the keys in the ignition. Not necessarily.

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Illinois law makes it a crime to drive under the influence of alcohol. This offense, commonly referred to as DUI, DWI or drunk driving, is described in 625 ILCS 5/11-501, which in a general makes it a crime to be in actual physical control of a motor vehicle while under the influence of alcohol or with a blood alcohol content (BAC) of .08 or greater.

A DUI conviction requires the state to prove, beyond a reasonable doubt, that you drove under the influence. A conviction results in a revocation of your driver’s license. Before you may legally drive again following a conviction, you must have an administrative driver’s license hearing with the Illinois Secretary of State.

An issue you face merely from the fact of being arrested for DUI, even absent a conviction, is a driver’s license suspension, based either upon refusing to submit to a test to measure your BAC, or taking a test and registering at least .08. However, the police must have a specific basis upon which to stop you in the first place. They must be able to show there is a legally recognized basis for doing so, except for pre-determined DUI roadblocks.

In People. v. Hansen, 2012 Il. App (4th) 110603, the driver contested the driver’s license suspension, claiming that the police had no valid reason to stop him. His argument was based upon the fact that the police pulled him over due to receiving an anonymous tip. The Fourth District Appellate Court, which covers Sangamon, Champaign, McClean, Adams and other counties in Central Illinois, rejected this contention.

When the police stop a driver for any reason, they will look for possible signs of intoxication. These include traffic offenses, particularly improper lane usage (weaving), a wide turn, driving more than 10 MPH below the posted limit); an odor of alcohol, bloodshot, glassy eyes, slurred speech, difficult with balance and coordination and belligerence.

If the police suspect you are under the influence based upon one or more of the above factors, and possibly others, they will typically ask you to perform standardized field sobriety tests (SFST), those being the horizontal gaze nystagmus (the HGN, in which the police wave a pencil across your face), the one-legged stand and the walk-and-turn (walking a straight line). Each test is “scored” for “clues”, with points being assessed against you based upon your performance in different phases of the tests.

The state must show that the police officer is specially trained in administration of the HGN. People v. McKown, 236 Ill. 2d 278, 924 N.E.2d 941, 338 Ill. Dec. 415, 2010 WL 572082 (2010) The HGN includes 6 possible clues for possible intoxication. A score of 4 or more is a failure.

The one-legged stand has 4 possible clues. A score of 2 or more is a failure.

The walk-and-turn has 8 possible clues. A score of 2 or more is a failure.

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A Sangamon County judge sentenced a Springfield woman to 10 years in prison following her conviction for aggravated Driving Under the Influence (DUI) and leaving the scene of an accident involving death or personal injury. The 23-year old woman, Ursula Jones, pled guilty to the offenses before Circuit Court Judge Leo Zappa.

Jones admitted to striking a bicyclist and then fleeing the scene, a violation of 625 ILCS 5/11-401, which provides in part that “(a) The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident” Failure to do so is a Class-4 felony.

A Class-4 felony is punishable by 1-3 years in prison and/or a fine of up to $25,000.00 730 ILCS 5/5-4.5-45; 5/5-4.5-50 Because the defendant was also convicted of aggravated DUI, the sentence for leaving the scene cannot run concurrent with the aggravated DUI conviction but must be served separately (consecutively). 730 ILCS 5/5-8-4(d)(4) Judge Zappa sentenced the defendant to 2 years for this offense.

A conviction for leaving the scene of an accident involving death or injury results in a driver’s license revocation for 3 years. 625 ILCS 5/6-205(a)(4); 6-208(b)(1) Following the revocation, the driver may apply for a restricted driving permit (RDP) through the Illinois Secretary of State 625 ILCS 5/6-205(c)(6)

In order to prevail at such a hearing, you must demonstrate that you can be a safe and responsible driver and that your inability to drive has caused undue hardship. Typically, the suspicion is that someone who flees the scene of an accident does so because he is drunk or otherwise driving illegally.

The law also requires you, even if you leave the scene, to report the accident to the police within a half hour. Any information provided in such a report cannot be used against you in a prosecution for leaving the scene.

However, failure to report an accident after leaving the scene is a Class-1 felony if there is a fatality. 625 ILCS 5/11-401(d) The punishment for a Class-1 felony is 4-15 years in prison 730 ILCS 5/5-4.5-30 and/or a fine of up to $25,000.00

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Illinois law makes Driving Under the Influence (DUI) illegal. 625 ILCS 5/11-500 (a) lists six different types of DUI with which you can be charged.

The most common are DUI-1 and 2. DUI-2 is driving under the influence of alcohol.

You can also be charged with DUI-3, (under the influence of any intoxicating compound or compounds, generally this refers to “huffing”), DUI-4 (under the influence of any other drug, including prescription medications, if they impair your driving, even if taken in prescribed doses) or DUI-5 (under the combined influence of alcohol, intoxicating compounds or any other drugs).

In essence, these laws make it illegal to drive after putting something in your body that impairs your driving ability. DUI-1 and DUI-6 are different than the others.

DUI-1 requires the state to prove nothing more than that you were in “actual physical control” of a motor vehicle at a time that your blood alcohol content was .08 or greater. No proof of actual impairment is needed. It is illegal to drive in Illinois with this blood alcohol level. Period. People v. Ziltz, 98 Ill. 2d 38, 74 Ill. Dec. 40, 455 N.E.2d 70 (1983)

DUI-6 only requires the police to prove that there was any amount of a prohibited substance (think marijuana, any other street drug, meth, designer drugs) in your “blood, breath or urine” regardless of the lack of any evidence of impairment. The Illinois Supreme Court has found this to be in compliance with the constitution, despite the fact there may be no evidence of bad driving (most of the time, these charges are brought after an accident that may not have even been your fault, or even if your fault, had nothing to do with the drugs you took days earlier that are still in your system). People v. Fate, 159 Ill. 2d 267, 201 Ill. Dec. 117, 636 N.E.2d 549 (1994); People. v. Martin, 2011 IL 109102
Because DUI is against the law, it is a crime and as such, anyone convicted of that offense is subject to various criminal penalties. However, some people who are guilty of DUI can avoid a conviction if they are granted court supervision.

A first time DUI offender is eligible for court supervision. If you have ever had supervision in your lifetime, or you if have ever been convicted of DUI or of reckless driving as a result of a plea bargain, you are no longer eligible for supervision. 730 ILCS 5/5-6-3.1(f)

Supervision is not automatic, however, even to those who are eligible for it. The final decision is up to the judge, and in determining whether to grant supervision, the judge must consider the recommendation of the prosecutor. People v. Price, 247 Ill. App. 3d 787, 187 Ill. Dec. 452, 617 N.E.2d 909 (4 Dist.), cert. denied, 153 Ill. 2d 567, 191 Ill. Dec. 626, 624 N.E.2d 814 (1993)

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If you are reading this, you likely know that Driving Under the Influence (DUI) is illegal. It can lead to criminal penalties, such as jail, probation, fines, alcohol classes, community service and MADD programs. 625 ILCS 5/11-500; 730 ILCS 5/5-4.5-55
It can result in a driver’s license suspension if the police ask you to take a breath test and you refuse, or if you take a breath test and register at least .08, the legal limit in Illinois. This suspension still stands if you receive court supervision, a reduced charge such as reckless driving and even if the DUI charge is dismissed (dropped).

A suspension, however, ends automatically when the time for it to run has ended. 625 ILCS 5/1-204. The suspension would be for as few as 6, and as many as 36, months, depending upon your overall driving record.

If you have not had a DUI in the previous 5 years, you are considered a “first offender” for the purpose of determining the length of your suspension, even if this is not your first DUI arrest. 625 ILCS 5/11-500 If you are a first offender who submits to the breath test and you register at least .08, you will be suspended for 6 months; upon a refusal, you will temporarily lose your license for 12 months. 625 ILCS 5/6-208.1
As a non first offender, you would be suspended for 12 months if you took a test and registered above the legal limit and 36 months if you refused. A non first offender cannot request any driving relief, not even a restricted driving permit (RDP) from the Illinois Secretary of State. 625 ILCS 5/6-208.1 (g)

If you are eventually convicted of the DUI charge, your driver’s license will be revoked. That means that in order to have driving privileges restored, you must have a driver’s license hearing before the Illinois Secretary of State. 625 ILCS 5/2-118 You will be revoked for 1 year if this is your first conviction, 5 years for a second conviction within 20 years of the first one and 10 years for a third conviction, regardless of the time period. 625 ILCS 5/6-208
A first offender is eligible for an MDDP while the suspension is in effect. The MDDP allows you to drive anywhere, at any time, for any reason, provided you are willing to install an interlock device (BAIID) on your vehicle. Driving without an MDDP is a felony. 625 ILCS 5/6-303(c-3)

A DUI conviction results in cancellation of the MDDP, a revocation of your driver’s license and the need for a Secretary of State hearing. This is a one -year waiting period for anyone with 2 or 3 DUI convictions before you can apply for an RDP. 625 ILCS 5/6-205(c)(6) If you receive an RDP, it will remain in effect until the revocation period ends. You will be required to renew the RDP on an annual basis.

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The son of Mike Ditka, legendary NFL tight end, coach and NBC football analyst, was arrested for DUI in Lake County (suburban Chicago) in April 2011. At the time, some commentators questioned whether the police had a basis to approach young Ditka’s vehicle in the first place.

Under the Fourth Amendment to the United States Constitution and the Illinois Constitution, you are protected from “unreasonable searches and seizures. In order to further those protections, the police must obtain a search or arrest warrant, although the courts have carved out numerous exceptions to the warrant requirement.

Therefore, not every citizen encounter with law enforcement constitutes a seizure that requires a warrant. In the realm of traffic and DUI law the most important case is Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968), where the United States Supreme Court ruled that if police had a “reasonable suspicion” that someone had committed or was about to commit a crime, the police could initiate what is known as an “investigatory stop”.

On the other hand, a mere “hunch” of illegal activity is insufficient to justify a Terry stop. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996). Whether or not a Terry stop is reasonable requires a balancing of the public’s interest in safety and the individual’s right to personal security and freedom. People v. Smithers, 83 Ill.2d.430,434 (1980)

In the Ditka case, the evidence showed that Ditka was sitting in a black Hummer in the parking lot of his Deerfield housing complex when the officer approached him. The officer said he asked Ditka to exit the vehicle after he smelled a strong odor of alcohol, according to a police report.

The judge determined that the officer had no reason to believe that Ditka had committed a crime when the officer approached his vehicle. The fact that after approaching the vehicle, the officer determined that Ditka had a strong odor of alcohol on his breath and that he submitted to a portable breath test (PBT) is not sufficient to overcome the Constitutional violation.

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In July 2011, a DuPage County man attempted to beat a train across the tracks. Unfortunately, it was a tie and his passenger died in the ensuing crash.

The driver, Jeffery Fisher of Carol Stream Illinois, survived the crash, which occurred at about 3:00 in the morning. Several hours later, Fisher’s registered a blood alcohol level of .15.

In Illinois, anyone who is in actual physical control of a motor vehicle upon the public highways with a blood alcohol level (BAL) of .08 or higher can be charged with Driving Under the Influence, or DUI. 625 ILCS 5/11-501. When the charge is based upon an excessive BAL, the state is not required to prove that the accused was actually impaired; the mere fact of the BAL is in and of itself a crime.

Typically, after a crash, the suspect offender may be unable to submit to standardized field sobriety tests (SFTS), as these involve physical activities such as the one-legged stand and the walk-and-turn (“walking a straight line”) challenges. Other commonly used evidence of alcohol impairment, such as bloodshot eyes, an odor of alcohol, difficulty with balance and slurred or mumbled speech, may also be unavailable due to injury.

Therefore, the BAL becomes a significant factor in proving evidence of a crime. Since you generally cannot be forced to submit to a breath test, it would seem that refusing would be the best course of action.

However, the law is set up to encourage you to submit. If you have not had a DUI arrest in the last five years and you submit to a test, your driver’s license will be suspended for 6 months if you register no less than .08, in accordance with 625 ILCS 5/11-500 and 625 ILCS 5/6-208.1 A refusal results in a 12 month suspension. In addition, at trial, the state is permitted to tell the jury that you refused and to argue that this is “evidence of a guilty mind”. 625 ILCS 5/11-501.2; City of Rockford v. Elliott, 308 Ill. App. 3d 735, 721 N.E.2d 715, 242 Ill. Dec. 436 (1999)

If you have been arrested for DUI in the previous 5 years and submit to a test, your license will be suspended for one year and if you refuse, it will be suspended for 3 years. During none of these suspensions will you be allowed to apply for any type of driving privileges, including a restricted driving permit (RDP).

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A Springfield Illinois man was arrested and taken the Sangamon County jail following a crash. The driver was not injured but his passenger and the driver of an oncoming vehicle with which he collided were taken to the hospital due to injuries.

The driver was arrested for Driving Under the Influence of Alcohol (DUI), a violation of 625 ILCS 5/11-501. He was also charged with improper lane usage, contrary to 625 ILCS 5/11-709.

This appears to be his first DUI charge, which is ordinarily a Class A misdemeanor, subject to a fine of no more than $2,500.00 and or up to 364 days in the county jail. 730 ILCS 5/5-4.5-5.5 Improper lane usage is a petty offense punishable by a fine only, not to exceed $500.00. 625 ILCS 5/6-601
However, the DUI law further provides: “(d) (1) Every person convicted of committing a violation of this [DUI] Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:
(C) the person in committing a violation of subsection (a) [DUI] was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries”.

If convicted under this section, the person is guilty of a Class 4 felony, and if sentenced to prison, faces 1-12 years in the Department of Corrections. 625 ILCS 5/11-501(d)(2)(A) and (d)(2)(F) This is known as “aggravated DUI” because it involves commission of a DUI with an additional aggravating (negative) circumstances, in this case, serious injury.

Illinois law provides for a disposition known as court supervision. If a person is granted supervision, he pleads guilty to the offense but no judgment of conviction is entered on his record. 730 ILCS 5/5-6-1. (d); People v. Schuning, 106 Ill. 2d 41, 86 Ill. Dec. 922, 476 N.E.2d 423 (1985)

During the period of supervision, which cannot extend any longer than 2 years, the offender must comply with the conditions of supervision , which typically provide that he not violate the law, complete alcohol counseling and pay all fines. Provided that he complies with the terms of the court supervision, the judge will dismiss the case.

However, in a DUI situation, the supervision will be reported to the Secretary of State and remain on the driver’s record forever. 625 ILCS 5/6-204 DUI supervision cannot be expunged. 20 ILCS 2630/5.2.(3)(A) Finally, you may only receive supervision once in your lifetime. 730 ILCS 5/5-6-1(d)

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