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In the news is a Springfield firefighter arrested for a third Illinois DUI. With a third DUI, the Captain faces some serious criminal and driver’s license issues.

For the driver’s license issues, you have to have more information beyond the fact this is the third arrest for DUI (Driving Under the Influence). Illinois driver’s license law provides that a person with three DUI convictions will suffer a driver’s license revocation for ten years. 625 ILCS 5/6-208

However, supervision is not a conviction 730 ILCS 5/5-6-1. (d). Therefore, for the purpose of determining how long you are revoked, do not include any DUI supervision dispositions, any DUI dismissals or any DUI tickets that result in a reduction in the charge to something such as reckless driving.

A DUI revocation does not mean you cannot drive for ten years. If you are able to demonstrate that not being able to drive is causing “undue hardship”, you may, after the first year of a revocation, apply for a Restricted Driving Permit (RDP) unless your previous DUI was less than five years ago and your license is suspended under the statutory summary suspension laws.

A statutory summary suspension happens when you are asked to take a breath (or blood) test and refuse to do so, or take the test and register .08 or higher. The suspension for refusing is much longer than for blowing over .08. Those who have a previous arrest less than five years ago cannot apply for an RDP during the suspension. 625 ILCS 5/6-208.1

The consequence of a refusal in that situation is a three year suspension and no driving. Taking the test and failing results in a one year suspension with no driving.

On the other hand, if you have no prior DUI offense within five years, a test over the legal limit results in a suspension for six months. A refusal causes a twelve month suspension.

During all but the first thirty days of the suspension, you are eligible to apply for a Monitoring Device Driving Permit (MDDP). This allows you to drive on an unlimited basis provided you agree to install an Interlock device that monitors your breath alcohol reading when you start your car and periodically while you are driving it.

Thus, for purposes of the revocation, it is not the number of DUI arrests that matters but the number of convictions. In terms of the statutory summary suspension length, the number of arrests or convictions do not matter. It’s how far apart they are and whether or not you took at test at the time of the most recent arrest.

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You are arrested for an Illinois DUI (Driving Under the Influence) You have posted bond, been released from jail and have been assigned a court date. You have in your hand a bunch of papers and are wondering, what now and what does this all mean?

You will probably receive a confusing array of uninformed advice in answer to this uncertainty. In order to understand what is going on, it is important for you to realize some fundamental things.

One critical item to keep in mind is the distinction between a driver’s license suspension and a revocation. A suspension is a temporary withdrawal of your right to drive in the state of Illinois. 625 ILCS 5/1-204 When the temporary period ends, your right to drive requires nothing more than paying a fee to the Illinois Secretary of State, provided that your driving privileges are otherwise valid.

In connection with a DUI offense, one of the things that can prevent your driver’s license from being otherwise valid is a driver’s license revocation. 625 ILCS 5/1-176 A revocation effectively terminates your current license, rather than simply putting it on hold as does a suspension. In order to be entitled to drive again, you must have a driver’s license hearing with the Illinois Secretary of State.

A driver’s license revocation occurs after a DUI conviction. DUI is a criminal charge which requires involvement of the courts and a determination that the state has enough evidence to find you guilty beyond a reasonable doubt.

Your right to apply for a new license is denied during the period of your revocation. That period will be one year for a first conviction, five years upon a second conviction and ten years with a third conviction. If any arrest that results in a fourth or later conviction occurs after January 1, 1999, you can never apply for a license. 625 ILCS 5/6-208

In many circumstances, even though you cannot apply for a full license, the Secretary of State is authorized to grant you a hearing to request a restricted driving permit (RDP) that allows you to drive for limited purposes (employment, medical for you or family members, support group meetings, court ordered community service, day care and school for you and family members). However, upon a second or more conviction, you must wait one year before you may apply for an RDP.

There is also a waiting period of one year if you are under 21 at the time you are arrested for a DUI for which you are later convicted. Another situation that will block you from receiving an RDP hearing is if at this is your second DUI offense in the past five years.

Your right to request an RDP will be put on hold for one year if you took a chemical test at the time of your second arrest and three years if you did not take a test. These time periods, by the way, apply even if the DUI charge is dropped, or in other words, even if you are not convicted of the DUI.

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Each year, the United States Supreme Court is asked to grant certiroria (which is necessary before the High Court will hear an appeal) in tens of thousands of cases. The Court only accepts about 150 of those petitions a year. All other applicants’ are denied Supreme Court review.

The court did agree to hear an appeal of a DUI case, something that appears to have occurred on only one other prior occassion, in the early 1980’s. The issue the Court agreed to decide was whether, in connection with a DUI arrest, the police may forcibly draw blood from a DUI suspect without first obtaining a search warrant?

In an Illinois DUI case, one of the investigative tools at the disposal of law enforcement is the right to test your breath or blood to determine if you have a blood alcohol content (BAL) of .08 or greater, .08 being the legal limit in Illinois. 625 ILCS 5/11-501 If the results of such tests show a reading of at least .08, this information can be used in two different ways.

First, such a reading can be grounds to impose a driver’s license suspension (known as a statutory summary suspension). In an effort to avoid giving the police that information, you may be tempted to turn down the tests.

Since a valid breath test requires you to blow into a tube, something that it is physically impossible to force a person to do, any forced testing must be done by strapping you to a gurney and drawing blood. As the law now stands in Illinois, it appears that the police may not do so without first obtaining a search warrant from a judge.

In general, the Fourth Amendment to the United States Constitution requires the police to obtain a warrant in order to conduct a search of your person, papers or other things. However, courts have carved out a number of exceptions to the warrant requirement.

One such exception involves “exigent circumstances”. These simply refers to the situation in which, if the police are required to contact a judge in order to request a search warrant, by the time the warrant issues, the evidence they hope to seize is in danger of being destroyed. The classic case of an exigency exemption is to avoid the suspect from flushing the drugs down the toilet.

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Illinois law makes it illegal to drive under the influence of alcohol. (DUI). Penalties for a first offense can be as much as a fine of $2,500 and up to 364 days in the county jail, or a combination of the two. 625 ILCS 5/11-501
A conviction for DUI requires the Illinois Secretary of State to revoke your driver’s license. A driver’s license revocation nullifies your right to drive in Illinois. 625 ILCS 6-208

In order to be entitled to drive without any restrictions, you must have a driver’s license hearing with the Illinois Secretary of State. In other words, restoration of full driving privileges is not automatic. Christiansen v. Edgar, 209 Ill. App. 3d 36, 153 Ill. Dec. 738, 567 N.E.2d 696 (4 Dist. 1991)

Revocations vary in length and depend upon your previous DUI convictions, if any. Keep in mind that in making these calculations, any dispositions of court supervision are not counted, as supervision is not a conviction.

The first DUI conviction will bring a one year revocation. A second DUI convictions that occurs within 20 years of the first one leads to a revocation for 5 years.

A third conviction nets a 10 year revocation. A fourth conviction can result in a lifetime revocation if any arrest that results in a conviction occurred after January 1, 1999.

The Secretary of State does not track court cases; therefore it is the responsibility of the Circuit Clerk to notify him of any DUI conviction. Within about 10 days of being notified of a DUI conviction, the Secretary of State will revoke your driver’s license.

In many situations, you may apply for a Restricted Driving Permit (RDP) while the revocation is in effect. The RDP is not a “license” but rather is permission to drive, for limited purposes, while your are ineligible to apply for a full license (during the revocation window of 1, 5 or 10 years). But someone with a lifetime revocation due to four convictions cannot apply for an RDP either.

There are a few situations in which you must wait before you can apply for an RDP. If this is your second or third conviction (meaning a 5 or 10 year revocation), you cannot apply for an RDP during the first year of the revocation. If you are convicted of aggravated DUI that causes a death, you cannot apply for an RDP until 2 years after the revocation, or 2 years after you are released from incarceration, whichever is later.

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At one time, an arrest for Driving Under the Influence (DUI) was not that big of a deal. Many such charges were reduced to reckless driving so that the driver did not lose his or her driver’s license.

Even when a DUI conviction did occur, there was normally a small fine and after a short period of time, the driver was allowed to drive again. In addition, breath tests were optional and there was no downside in not agreeing to take a test.

The legal blood alcohol level (BAL) was high. Finally, even if a breath test existed, the state was still required to prove you were intoxicated at the time you were driving the car.

Today, the consequences of a DUI arrest, much less a conviction, are more serious. The police have developed more sophisticated investigative tools, such as the Horizontal Gaze Nystagumus (HGN), the walk-and-turn and the one-legged stand.

These are tests that, law enforcement alleges, are designed to determine whether your ability to perform physical tasks required to drive are impaired by alcohol. Results of your performance on these tests are often recorded on video cameras affixed to police cruiser dashboards.

These recordings are admissible in court. Furthermore, Illinois law allows police to ask you to provide a breath sample into a Preliminary Breath Test (PBT) in order to help in establishing whether there is probable cause to believe you may be under the influence of alcohol.

While PBT results are admissible to help the state establish that the police officer had a basis to believe you might be under the influence, the results themselves cannot be used to establish actual guilt. People v. Rose, 268 Ill. App. 3d 174, 205 Ill. Dec. 574, 643 N.E.2d 865 (4 Dist. 1994) Moreover, the accused is entitled to refuse to take the PBT and there is no penalty for doing so. 625 ILCS 5/11-501.5

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On a daily basis, we read and hear about arrests for Driving Under the Influence (DUI). After an arrest occurs, the case follows two tracks.

The first track has to do with the driver’s license suspension from a DUI arrest. In connection with a DUI arrest, you will be asked to submit to a portable breath test (PBT).

The results of a PBT cannot be used in court as direct evidence of your blood alcohol content (BAL), or in other words, whether you have enough alcohol in your body to be over the legal limit of .08. 625 ILCS 5/11-501.5 However, the officer may rely upon the PBT results, along with standardized field sobriety tests and other physical characteristics (bloodshot eyes, odor of alcohol, slurred speech, weaving and others) to determine if there is probable cause to believe you should be arrested for DUI.

Once the officer, relying upon the above factors, believes there is probable cause, you will be placed under arrest for DUI. After that you will be asked to submit to a “chemical test”, either a blood draw or by the use of a machine that is purportedly certified for accuracy and administered by someone with training in doing so. Consequently, those results are admissible in court to prove your BAL. 625 ILCS 5/11-501.2

A BAL of .08 or greater will result in a driver’s license suspension for a specific period of time, unless you are able to prosecute a rescission of the statutory summary suspension. You also have the right to refuse testing unless there is an accident with serious injury or unless you are taken to the hospital for medical treatment.

The length of the summary suspension depends upon two factors, those being whether you agreed to the test and whether it has been greater or fewer than five years since you received a previous DUI (if any). If you have had a DUI within the previous five years and you register .08 or higher, your suspension will last for one year. If you do not submit to a chemical test, you will be suspended for three years. You cannot drive for any reason, even on a restricted basis, during the suspension.

If this is your first DUI or if the most recent prior DUI happened more five years ago, then a refusal will result in a one year suspension and a test of .08 or higher will lead to a six month suspension. After the first thirty days of the suspension, you would be eligible for a Monitoring Device Driving Permit (MDDP).

The second prong of a DUI arrest involves the crime of DUI. It is a crime because if you are convicted, you are subject to fines and or jail time.

Before the government can take away your property or liberty, they must prove, beyond a reasonable doubt, that you committed the crime of which you are accused. Thus, unlike the driver’s license suspension, which is automatic, the state must prove certain things before you can be convicted of DUI.

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Illinois has a reckless homicide law. 720 ILCS 5/9-3 In its simplest terms, reckless homicide involves doing something grossly dangerous and stupid that causes the death of another person, even if unintended. A classic case would be randomly firing a gun into a crowd.

The reckless homicide law formerly provided that “in cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary” In other words, if you were driving drunk and someone died in a crash, you were assumed to be guilty of reckless homicide.

A criminal offense is broken down into what are known as “elements’ of the crime. “Elements” means that if facts A and B are proven, the defendant is guilty of C.

The state has the burden of proving, beyond a reasonable doubt, each element of the crime. The problem with the reckless homicide law as pertains to drunk driving is that it required the defendant (the accused) to disprove one of the elements, namely, that his conduct was reckless. This improperly shifted the burden of proof to the defendant and is unconstitutional. People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003)

In response to this, the DUI law was changed. Today, there are various offenses that fall under the category of “aggravated DUI”. 625 ILCS 11-501(d) Aggravated DUI is always a felony and in some circumstances, the penalties for that offense are enhanced beyond the maximums that would otherwise apply.

Thus, a driver is guilty of aggravated DUI if, in committing the offense of DUI (Driving Under the Influence), the driver was involved in an accident that resulted in the death of another person, so long as the act of driving under the influence was the “proximate cause” of the death. The prosecutor is required to prove that the act of driving under the influence caused the death, which renders the law constitutional. People v. Winningham, 391 Ill.App.3d 476 (4th Dist. 2009)

Another aggravated DUI circumstance arises if the driver committed DUI and had been previously convicted of reckless homicide in the operation of a motor vehicle. 625 ILCS 5/11-501(d) A person in that situation is guilty of a felony.

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Illinois, as is the case with most states and the federal government, makes it illegal to possess marijuana. A few states recognize medicinal marijuana, which can be used with a prescription.

A couple of states recently decriminalized (made legal) marijuana use. A topic for another time is how those states will square their laws with the fact that marijuana possession remains a federal offense should the Federal Government choose to press charges.

That aside, driving under the influence (DUI) is illegal in all 50 states, including Illinois. 625 ILCS 5/11-501 While the term used is “driving” under the influence, the specific law makes it illegal, while “under the influence”, to drive or to be in “actual physical control” of a “vehicle” anywhere within the State of Illinois.

A “vehicle” includes any device upon which property or person may be transported, excluding human-powered devices. 625 ILCS 5/1-217 Therefore, it is not illegal to operate a bicycle while under the influence. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV is, however, covered, even though you are not required to have a driver’s license or license plate to operate one.

“Under the influence” does not require the State to prove you were “drunk, intoxicated, buzzed” etc. Rather, a person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care IPI (Criminal) 23.29 In essence, you may convicted of DUI based upon nothing beyond proof that alcohol reduced your ability to think and act normally.

You may also be convicted of DUI in a way that does not require proof of actual impairment. If the state can show through chemical testing that your blood alcohol level at the time you were driving or in actual physical control of a vehicle was .08 or higher, you are just as guilty as though the State had proven your ability to drive was impaired due to alcohol.

In these blood-alcohol level type of cases, the defense must attempt to attack the manner in which the test was administered or assail its general reliability to prove accurate results, or otherwise show a judge or jury that the police engaged in other irregularities that tainted the evidence or that violated your Constitutional rights. While evidence of your apparent intoxicated or sober state are not required in this type of prosecution, such evidence can either support or erode the jury’s confidence in the chemical test results that the state proffers as proof of your being .08 or above.

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There are approximately 40,000 Illinois DUI arrests each year. And that is just one state.

Over the course of an entire year, in the nation as a whole, there must be hundreds of thousands of such arrests. In fact, we personally represent many Illinois residents who have been convicted of a DUI while driving in another state and who, because of the conviction, lose their Illinois driving privileges, as provided for by law. 625 ILCS 5/6-206(a)(6) and 6-203.1
Yet whenever a well-known or prominent individual receives a favorable DUI outcome, a segment of the population, despite not knowing all the facts, cries “foul”! Many do not appreciate the fact that while there may be a rare number of cases in which “the fix is in”, the more probable explanation in the vast majority of dismissals is that the person had effective legal representation, coupled with factual and or legal deficiencies in the prosecutor’s case that the attorney was able to exploit.

If celebrity and clout were the ticket to getting away with DUI, the likes of Lindsey Lohan, Mel Gibson and Bobby Brown would not have been convicted. A recent situation in Washington State is instructive.

A judge was arrested for DUI. One thing to mention is that county prosecutor, whose office appears before the judge, removed himself from the case to avoid potential conflicts of interest. An outside lawyer who does not have contact with this judge’s court system, reviewed the evidence. Based upon that remove, he submitted a written report explaining in detail why he declined to prosecute the judge.

One means of attacking a DUI arrest is that the officer had no reasonable basis to initiate the stop. Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968) In that regard, the police were on solid grounds. The officer observed the vehicle weaving for a substantial distance, the driver failed to signal lane changes and the vehicle was traveling well above the posted speed limit. All of these constitute traffic code violations. Even if the driver in fact was not guilty beyond a reasonable doubt of committing these offenses, the arresting officer had a reasonable basis to believe the driver had violated the law.

The next step in the process is to determine whether the officer could escalate a simple traffic stop into a DUI offense? The police cannot pull you over for a traffic ticket and then immediately start investigating you for DUI.

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Suppose you are arrested for Driving Under the Influence (DUI) in Illinois. Such an arrest typically involves a criminal charge.

If you are convicted, you face the possibility of being fined, sentenced to probation or jail, ordered to attend alcohol classes and a MADD panel, required to wear an ankle bracelet and subjected to other punishments that can arise from a criminal case. DUI is a Class-A misdemeanor, which is a crime. 625 ILCS 5/111-501
There is also a noncriminal aspect to the DUI arrest, namely, negative action taken against your driver’s license. This is known as an “administrative sanction”.

A driver’s license suspension or revocation may seem like punishment, but a driver’s license is a privilege and not a right and furthermore, administrative sanctions do not include jail or fines. Therefore, taking away your driver’s license is not considered criminal in nature.

You may experience driver’s license sanctions arising from a DUI arrest that include a suspension or a revocation or both. A suspension creates a temporary hold on your right to drive for a specific period of time. After that time period ends, your suspension is over once you pay a reinstatement fee. 625 ILCS 5/1-204
A driver’s license revocation is also for a given period of time. But unlike a suspension, a revocation ends your right to drive, rather than just putting it on hold.

After the revocation time is over, your right to drive is not restored automatically. You must request driving privileges by having a driver’s license hearing with the Illinois Secretary of State. 625 ILCS 5/1-176
A successful driver’s license hearing requires that you provide a drug and alcohol evaluation, complete classes and if your classification is high risk dependent (alcoholics) stop drinking for at least 12 months and develop a support program, either Alcoholics Anonymous or a nontraditional program. There may be a fee for the hearing. Even if you win, you may be required to install, at your expense, a Breath Alcohol Interlock Ignition Device (BAIID). Finally, you will be required to pay a reinstatement fee.

Fees, evaluations, classes, breath machines etc. may sound like punishment. They are not considered punishment because the law does not force you to apply for your driver’s license.

A suspension arises from a DUI arrest based upon what happens when the police ask you to take a chemical test (breath or blood) during the arrest. If you register at least .08 on the chemical test or refuse to take it, the Secretary of State will suspend your driver’s license for anywhere from 6 months to 3 years. If you have gone more than 5 years without a DUI, the suspension is 6 months if you take the test and 12 months if you do not. You can apply for a driving permit during all but the first 30 days of the suspension. This is known as a Monitoring Device Driving Permit (MDDP) . 625 ILCS 5/6-208.1

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We have provided effective advice and assistance to thousands of clients facing driver's license suspensions and revocations, both in Illinois and out-of-state, including students from area colleges and universities.

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