Illinois DUI Lawyer Blawg

Published on: December 9, 2011

Williamson County, Illinois crash leads to injuries and DUI charges

Illinois has a law against Driving Under the Influence (DUI) of alcohol or drugs. 625 ILCS 5/11-501 and following. Some people are surprised to learn that they can be arrested for DUI in Illinois even if they are involved in a crash in which they are the only ones injured.

There are several different types of DUI in Illinois. 625 ILCS 5/11-501(a) provides as follows: (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2 [625 ILCS 5/11-501.2];
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.

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Published on: December 2, 2011

Illinois’ lifetime ban on driving privileges may block the ability to obtain an out of state driver’s license

By Theodore Harvatin

Many states impose lifetime bans on driving privileges after someone is convicted of a certain number of driving under the influence (DUI) offenses. Illinois has a similar provision that on its face seems straightforward but is difficult to navigate.

The Illinois law setting forth the consequences of a DUI conviction are found at 625 ILCS 5/6-208. In analyzing the effect of this statute, it is important to keep in mind that it only applies to “convictions”.

Therefore, to determine your situation, you must do more than count the number of times that you were arrested for DUI. If the arrest does not result in a conviction for DUI, it does not count against you.

Obviously, if the DUI is dismissed, there is no conviction. Likewise, if the charge is reduced to reckless driving, there is no conviction.

Finally, Illinois has a provision known as court supervision. A disposition of court supervision, if successfully completed, is not, for purposes of Illinois law, a conviction. 730 ILCS 5/5-6-1. (d); People v. Schuning, 106 Ill. 2d 41, 86 Ill. Dec. 922, 476 N.E.2d 423 (1985)

Illinois law clearly provides that in determining the length of a revocation following a DUI conviction, the Illinois Secretary of State is to consider out-of-state convictions. 625 ILCS 5/6-208. However, this analysis must be further refined.

When someone who holds a license issued by one state is convicted of a DUI stemming from an arrest in another state, the arresting state, if a member of the Interstate Driver’s License Compact (“Compact”), 625 ILCS 5/1-117, is supposed to report the DUI conviction to the licensing state. In the event Illinois receives such a report, it will include that DUI conviction on the driver’s driving record.

When calculating the length of a revocation, those out-of-state convictions that the arresting state reports to Illinois will count. However, not all states are members of the Compact. Moreover, not all states are diligent about reporting DUI convictions to other states. Nonetheless, these out-of-state convictions may catch up with you in another way.

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Published on: November 25, 2011

Interlock Devices in connection with an Illinois DUI

By Theodore Harvatin

Mothers Against Drunk Drivers (MADD) is convinced that the answer to DUI (Driving Under the Influence) is to require anyone convicted of DUI to install an ignition interlock device. In Illinois, this is known as a Breath Alcohol Ignition Interlock Device (BAIID)

A machine designed to measure the alcohol content of your breath is wired into your vehicle’s ignition. The device has a mouthpiece attached to it. You must blow into the mouthpiece and not register above a certain alcohol level in order for your vehicle to start. The results of all breath samples are stored and provided to the Illinois Secretary of State. 92 Ill. Adm. Code §1001.441
MADD, along with the manufacturers and installers of the BAIID machines, relentlessly promote the use of this device. After all, if the DUI “crisis” were ever alleviated, neither organization would have a reason to exist.

These organizations use their lobbying and campaign contributions at both the federal and state level. Their latest target is Massachusetts. They are promoting that first time DUI offenders be required to use an interlock device. It is a safe bet that at some point, they will set their sites on Illinois.

The law in Illinois with relation to when BAIID is required is more than a little confusing for someone who does not specialize in DUI. There exist two separate situations in which BAIID is required and within each of those situations, there are exceptions to the requirement.

To understand the differences, you must keep in mind that there are two prongs to a DUI arrest. At the time of a DUI arrest, the police will ask you to submit to a blood or breath test to determine what your blood alcohol content is. 625 ILCS 5/11-501.1
If you choose to submit to testing and register a level of .08 or greater, those results can be used against you in the DUI prosecution, as operating a motor vehicle with a BAC above .08 is illegal, or in other words, a crime. 625 ILCS 5/11-501 Even if you elect not to submit to testing, the state can charge you with driving while impaired by alcohol, or in other words, straight DUI.

Upon being convicted of a DUI, you face criminal consequences, (jail and or fines). For purposes of BAIID issues, the more important consequence of a DUI conviction is a driver’s license revocation.

Once your driver’s license is revoked because you were convicted of DUI, you must have a hearing with the Illinois Secretary of State. 625 ILCS 5/6-208 As Illinois law presently stands, you are not required to have BAIID in the event you are issued a restricted driving permit (RDP) or full reinstatement if this is your only DUI disposition in this or any other state. 625 ILCS 5/6-205(c) and 6-206(c)3
Furthermore, if you have had a previous DUI arrest and avoided being convicted of the DUI and your statutory summary suspension from the earlier arrest was rescinded, you are not BAIID required. And if you were not convicted of a prior DUI and received an SSS but the previous SSS was more than 10 years ago, you are not BAIID.

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Published on: November 18, 2011

Madison County DUI fatality results in guilty plea

By Theodore Harvatin

On October 22, 2010, Brittney Rhea Butler was driving on Route 143 in Madison County, Illinois. The motor vehicle she was operating slammed into the rear of a vehicle that was stopped on the highway waiting to make a left turn.

In Butler’s 1985 Cadillac was a 35 year-old passenger, Jeffrey L. Davis of Edwardsville, Illiinois. While Butler suffered only minor injuries, Davis died.

There were no skid marks; police estimated the Butler vehicle was traveling 80 MPH. Butler’s blood alcohol level was .162. She was charged with aggravated Driving Under the Influence (DUI).

The legal limit for an Illinois DUI is .08. 625 ILCS 5/11-501.2 The possible penalties and driver’s license sanctions for a first time DUI are up to 364 days in the county jail and/or a fine of up to $2,500.00 and a one year driver’s license revocation. 625 ILCS 5/11-501; 730 ILCS 5/5-4.5-55; 625 ILCS 5/6-208(b)(1)

Illinois has a DUI disposition known as court supervision. If a person is eligible for court supervision and if the judge sees fit to grant supervision, jail time cannot be imposed. In addition, since supervision is not a conviction, there will not be a driver’s license revocation. 730 ILCS 5/5-6-1. (d)

However, Butler was charged with aggravated DUI and supervision was not an option. The DUI is considered “aggravated” because of the fatality. 625 ILCS 5/11-501(d)(1)(F)

As a result of the aggravated nature of the offense, not only was supervision not an option, but since aggravated DUI is a felony, Butler faced from 3 to 14 years in the Illinois Department of Corrections (prison). Butler agreed to plead guilty.

In exchange for her guilty plea, prosecutors agreed to seek no more than 10 years in prison. The final sentence will be up to the judge.

In the opinion of this DUI lawyer, Butler is likely to receive 10 years. In determining an appropriate sentence, the judge is entitled to look at Butler’s criminal past.

At the time Butler committed this offense, she was on probation for two felony drug convictions from only year earlier. She also had a 2007 DUI arrest that was pled down to reckless driving.

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Published on: November 11, 2011

Heavy-handed DUI tactics leave Kane County authorities red-faced

By Theodore Harvatin

In Illinois, there are several consequences that flow from an arrest for Driving Under the Influence (DUI). The DUI statute, found at 625 ILCS 5/11-501, states, in part, that “(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;
(2) under the influence of alcohol”;
Therefore, you may be charged with DUI based upon the fact your blood alcohol level (BAL) was .08 or higher. The state is not required to prove that you seemed drunk (staggering, bloodshot eyes, etc).

Quite simply, it is illegal in Illinois to drive with more than .08% alcohol in your system. It is similar to speeding. The police do not have to show that your high speed made you a dangerous driver but simply that you were driving above the posted limit.

You may be tempted to conclude, if I never take the test, they cannot prove what my BAL was and therefore cannot convict me of driving with a BAL above .08. That strategy does carry with it some risks.

Refusing the test prevents the .08 prosecution, but it allows the state to argue you had a “guilty mind”. In other words, if you had nothing to hide, why didn’t you take the test? This could help the state convict you under the second definition of DUI, (part 2 above, “under the influence of alcohol”).

DUI under this section requires the state to prove that you were in fact impaired, since your refusal to submit to testing may be considered by the jury as evidence of a guilty mind 625 ILCS 6/11-501.2; P. v. Rolfingsmeyer, 101 Ill. 2d 137, 77 Ill. Dec. 787 (1984). By not submitting to testing, you forfeit the opportunity to show you were under the legal limit and you provide the state with an argument to use against you at trial.

Refusal of the test also carries with it driver’s license consequences in terms of the statutory summary suspension (SSS). The SSS law is found at 625 ILCS 5/11-501.1 and 625 ILCS 5/6-208 and 208.1

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Published on: November 4, 2011

Football player receives supervision in Champaign County DUI

By Theodore Harvatin

The University of Illinois is the flagship university in Illinois. The main campus is located in the twin cities of Urbana-Champaign, Champaign County. There are branch campuses in other cities, including Springfield, Illinois.

As a Big Ten university, the U of I has a football program. Being a university, it has young people. Young people drink, some of them drive. And some of them are charged with Driving Under the Influence (DUI).

On July 30, 2011, one Ashante Williams, a U of I football player, was arrested for DUI in Urbana. It was reported that Williams was stopped at about 1:30 AM for improper lane usage and speeding. Williams did submit to a breath test, with a resulting blood alcohol level of .177. The legal blood alcohol level in Illinois is .08. 625 ILCS 5/11-501(a)(1).

When a person who is arrested for DUI registers a blood alcohol level of .08 or higher, he has committed a “per se” violation of the DUI laws. This is a Latin term that essential translates into “automatic”.

The state does not have to prove that the driver was under the influence of alcohol (“drunk”) but simply that he was operating a motor vehicle with a blood alcohol content of .08 or higher. The Illinois Supreme Court has upheld the constitutionality of the “per se” law. People v. Ziltz 98 Ill.2d 38, 455 N.E.2d 70 (1983)

Williams was granted court supervision for one year. Supervision is a sentence that prevents Williams from having his driver’s license revoked by the Secretary of State, the agency in Illinois that maintains driving records.

The judge imposed certain conditions on Williams (fines, alcohol classes, Victim Impact Panel sponsored by MADD), including that he not receive another traffic violation during the year his supervision is in effect. If Williams complies with all of the supervision requirements, although he pled guilty to DUI, he will not have a conviction entered on his record and the charges will be dismissed. 730 ILCS 5/5-6-3.1(e)

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Published on: October 28, 2011

Mike Ditka’s son’s Lake County Illinois DUI arrest

By Theodore Harvatin

One of Mike Ditka’s sons, Mark Ditka, was arrested for DUI in Lake County Illinois. This follows closely on the heels of his brother Michael’s DUI arrest last month, his third. Some may recall their father Mike Ditka, former NFL football player, coach and television announcer, was arrested for DUI a few years ago, in the northern part of Illinois.

Michael has two previous DUI violations. Therefore, Illinois prosecutors have charged him with felony DUI in accordance with 625 ILCS 5/11-501 (d). Although his first offense may have resulted in court supervision, which is not a conviction, Michael faces a felony offense due to appellate court case law holding that any prior “violation”, including supervision, counts in determining whether there is a third violation. People v. Bloomberg, 378 Ill. App. 3d 686, 881 N.E.2d 615, 317 Ill. Dec. 447, (Ill. App. Ct. 2008)

Both Michael and Mark have pleaded not guilty. Since DUI is a criminal offense, the state has the burden of proving them guilty beyond a reasonable doubt. People v. Shaffer, 134 Ill. App. 3d 548, 89 Ill. Dec. 709, 481 N.E.2d 61 (1 Dist. 1985)

On the other hand, Mark is eligible to receive court supervision. Court supervision is not a conviction. This is important because the Illinois Secretary of State will not revoke your license if you are not convicted of DUI. Therefore, you will not be required to attend a driver’s license hearing.

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Published on: October 21, 2011

Miranda rights in Illinois DUI arrests

By Theodore Harvatin

Under the Fifth Amendment to the United States Constitution, the state cannot force you to give evidence against yourself (you have “the right to remain silent”; you can “take the Fifth”). Under the Sixth Amendment to the United States Constitution, you have the right to a lawyer when you are charged with a crime.

A famous case, Miranda v. Arizona 384 U.S. 436 (1966), held that the police must inform you of the right to remain silent, that anything you say may be used against you, that you have the right to consult with attorney before any police questioning and that a lawyer will be appointed if you are unable to afford one. This is often referred to as “reading me my rights”.

The United States Supreme Court reasoned that if someone were not aware of his rights, then having those rights would not be of any use to them. Therefore, Miranda determined that in the proper circumstances, the police are required to inform you of your rights.

In a case known as Mapp v. Ohio, 367 U.S. 643 (1961), the court had, before the Miranda case, held that if the police violate your constitutional rights, the appropriate remedy is to exclude the evidence that the police gathered illegally. This is knows as the “exclusionary rule”.

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Published on: October 12, 2011

Father charged in Springfield due to daughter’s DUI death

By Theodore Harvatin

The Sangamon County State’s Attorney in Springfield Illinois charged a man with felony Driving Under the Influence (DUI). The charges stem from the death of the man’s seven-year-old daughter following a crash in a country road near Springfield.

The driver, with his daughter properly placed in a child restraint seat, drove off the roadway, down an embankment and across a creek bed, then crashed into a ditch. The front of the vehicle suffered extensive damage. The allegation is that the driver committed a violation of the Illinois DUI law 625 ILCS 5/11-501
Court records show that the driver had two previous Springfield DUI arrests. The first charge resulted in the driver being sentenced to court supervision. Court supervision prevented a conviction which would have been entered in accordance with 625 ILCS 5/6-205(a)(2) and created the need for a driver’s license hearing.

The second DUI charge was dismissed, a case that demonstrates there are two elements to a DUI charge. The first element is being under the influence.

In addition, to prove DUI, the police must show that you were in actual, physical control of the vehicle while under the influence. However, they are not required to show that you were actually driving, but merely that you either had been driving or were about to drive. Consequently, you can be guilty of DUI even if you are pulled over and “sleeping it off”. People v. Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1 Dist. 1990)

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Published on: October 7, 2011

DuPage County political operative pleads guilty to DUI

By Theodore Harvatin

DuPage County is located in Wheaton, Illinois, a Chicago suburb known for being tough on Driving Under the Influence (DUI) offenders. Many politicians from that area have used this attitude to climb the political and judicial ladder.

According to news reports, on August 28, 2011, the defendant in this case was initially stopped for improper lane usage (weaving). 625 ILCS 5/11-709 Weaving is the most common reason that police provide for initiating an investigative stop.

Appeals courts for Wheaton DUI cases had initially held that police may initiate a stop of a driving who is weaving within his own lane, even though that is not illegal. People v. Manders, 317 Ill. App. 3d 337 (2d Dist. 2000) This case was later overruled in People v. Greco, 336 Ill. App 3d 253 (2d Dist. 2003)

The defendant was a first time DUI offender who was charged with a Class-A misdemeanor. A Class-A misdemeanor is punishable by a fine of up to $2,500.00 and/or incarceration in the county jail for up to 364 days. 730 ILCS 5/5-4.5-5.5
Because this was his first DUI charge, the accused was eligible to request court supervision and in fact received it. This brings with it several consequences.

The first is that when one is sentenced to court supervision, the judge cannot order jail time. However, a DUI supervision can never be expunged from your record. 730 ILCS 5/5-6-3.1(f).

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