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).
Ordinarily, DUI is a Class A misdemeanor, with penalties that cannot exceed 364 days in county jail and or a fine of $2500. 730 ILCS 5/5-4.5-5.5 There are certain factual situations in which a DUI misdemeanor can be upgraded to a felony. These factors are known as “aggravating” factors, or in other words, they make the DUI “worse”.
The aggravated DUI statute includes the following, among others, that can turn a DUI into a felony: committing a third DUI, causing great bodily harm or permanent disability to someone, being involved in an injury accident while in a school speed zone, driving on a license that is suspended or revoked due to a previous DUI, committing a DUI in a vehicle that you knew was not covered by insurance, driving under the influence when you did not possess a valid license or permit, being involved in a crash while under the influence in which a child under the age of 16 was a passenger in your car and was injured in the crash, receiving a second DUI while transporting a person under the age of 16 and causing death due to driving under the influence. 625 ILCS 5/11-501(d)
In the case of a death, the fines and jail time (3-14 years for one death and 6-28 for two or more) are much stiffer and probation is not an option unless the judge finds that extraordinary circumstances exist and require probation 625 ILCS 5/11-501(G) Upon being convicted of aggravated DUI involving death, your driver’s license will be revoked for a period of three years after your release from prison. Only then can you have a driver’s license hearing. 625 ILCS 5/6-205(c) and 6-206(c)3; 92 Illinois Administrative Code §1001.420, 430