Articles Posted in DUI

Sandra Vasquez of Aurora Illinois was operating a motor vehicle that was involved in a fatal crash that killed 5 teenagers in 2007. It was determined that Vasquez was driving under the influence (DUI).

The DUI law lists a number of aggravating factors (“aggravating” meaning facts exist that make the offense more serious than the typical case). One of those factors in aggravation is that the DUI cause a fatality. 625 ILCS 5/11-501(d)(2)(G)

Most cases of aggravated DUI are a Class-2 felony. As such, the term of incarceration is 3-7 years but probation (no jail) is an option. § 730 ILCS 5/5-4.5-35. However, when the DUI involves a fatality, it is a felony with an extended term (extra prison time) of 3-14 years if there is a single death and 6-28 years for multiple deaths, as in Vasquez’s case.

Furthermore, a fatality DUI offense is not subject to probation unless the court finds that “extraordinary circumstances” exist. Vasquez claimed extraordinary circumstances existed because she had no prior record and she worked with dementia patients.

In a criminal case, the Seventh Amendment to the United States Constitution gives the defendant (the accused) the right to a trial by jury. However, while the jury decides guilt or innocence, in Illinois, the judge determines the sentence.

The judge for Vasquez determined that extraordinary circumstances did not exist and sentenced her to 15 years in prison. Vasquez, as is her right, appealed.

The Illinois court system begins with numerous trial courts in all 102 counties of the state. Everybody has an automatic right to appeal an unfavorable ruling to one of the five appellate courts located in Chicago, Springfield, Mt. Vernon, Elgin and Ottawa.

An appeal is assigned to one of the five appellate courts depending upon which trial judge heard the case. At times, this results in conflicts among the appellate courts, all of which issue written decisions.

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The state of Illinois has a law that makes it illegal to drive under the influence (“DUI”). 625 ILCS 5/11-501. According to the Illinois Secretary of State, his office received reports of 49,100 DUI arrests in Illinois for the year 2010.

In the early days of the DUI laws, the only prohibition was driving under the influence of alcohol. The state was required to prove that alcohol affected your ability to drive safely.

In fact, the short cut name for DUI was “drunk driving” and the legal name was “driving while intoxicated”. This wording led the general public, including jurors, to infer that in order to be guilty of DUI, you had to be “stumbling drunk”.

The legal limit was a very high .15 blood alcohol content, which was later lowered to .10 and finally, in July 1997, it was reduced to the current .08. 625 ILCS 5/11-501(a)(1) The name was changed to “driving under the influence”.

The police had always had the right to ask you to take a blood or breath test. However, there was no driver’s license penalty for refusing, and the jury was not told that you had refused.

There were no established standards for performing standardized field sobriety tests (SFTS), including the officer waving the pen back and forth, walking a straight line and the one-legged stand, or for explaining the results to the jury.

All of that has changed under today’s DUI laws. If you take a test and you register .08 or higher, your driver’s license is subject to a suspension. If you do not take a test, the suspension is twice as long and the state is allowed to argue to the jury that you did not take the test because you knew you were drunk. The suspension applies even if the DUI is thrown out.

There are also products other than alcohol that can lead to a DUI arrest. It is illegal to drive under the influence of a drug or combination of drugs other than alcohol (alcohol itself is a drug). Thus, it’s DUI to drive high on cocaine for instance.

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A Belleville Illinois police officer arrested Fairview Heights police sergeant James Krummrich for the offense of Driving Under the Influence on St. Patrick’s Day. Because of the unusual evidence presented to him at a hearing related to the case, the judge quoted lyrics from a Buffalo Springfield song, “There’s something happening here, what it is ain’t exactly clear.”

The police must have a reason to come in contact with you. Legally speaking, they are required to have a “reasonable suspicion” of criminal activity in order to be in compliance with the Fourth Amendment to the United States Constitution. Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968)

In this case, the accused was involved in a crash. Since not every driver who crashes is drunk, before the police can investigate a DUI charge, they must have a reasonable basis to believe the driver operated his motor vehicle while under the influence, since a mere “hunch” is not enough. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996)

The investigating officer told the judge that the accused admitted he was driving the truck that was involved in the crash. Moreover, the officer testified that the defendant smelled of alcohol, his eyes were glassy and he admitted he had a few drinks.

Nonetheless, the investigating officer stated in his police report that he did not believe Sergeant Krummrich was impaired. In addition, a passenger in the Krummrich vehicle, Collinsville Police Sergeant Charles Mackin, testified he did not believe his driver was intoxicated and that he would not have made an arrest for DUI if he had been the investigating officer.

The investigating officer testified he asked the driver to take a breath test and he refused. However, both the driver and his passenger denied such a request was made. The investigating officer’s supervisor, who was not present at the scene, ordered the arresting officer to make an arrest.

Adding further confusion, the officer who assisted the arresting officer testified he asked the driver to submit to standardized field sobriety tests (SFTS). However, that information was not in the assisting officer’s report, although it was in the investigating officer’s report.

The investigating officer testified that he had a video from his patrol car camera the driver’s refusal to take the FSTS. However, the prosecutors never turned over this video to the defense during discovery, as would be required under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Kladis, 2011 IL 110920

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On February 27, 2012, a man came to the door of a woman he did not know. He confessed that on August 7, 2008, he had run down the woman’s sister with his car, causing serious injuries that led to her death, after which he fled the scene. The woman quickly died of her injuries.

Approximately 18 months after the hit-and-run, the man was charged with Driving Under the Influence (DUI). In that case, he pleaded guilty to reckless driving and was ordered to obtain a drug and alcohol evaluation and complete treatment for alcohol abuse and mental health issues.

The minimum number of alcohol treatment hours you must complete after a DUI offense is set by rules established by the State of Illinois, Department of Human Services, Division of Alcohol and Substance Abuse (DASA) in close coordination with the Illinois Secretary of State and DUI judges throughout the state. Keep in mind that these are the minimum requirements, and the person conducting the evaluation may require more hours.

DASA rules mandate that the lowest risk level, known as “minimal risk” requires completion of a 10-hour Driver Risk Education (DRE) course designed to educate you on the dangers of drinking and driving and the physical effects of alcohol (primarily how much you can drink before you are considered under the law to be legally impaired to drive). The following facts must be present in order to fall into the minimal risk category:

1) this is your first DUI arrest;
2) you submitted to a blood or breath test;
3) your blood alcohol content (BAC) was under .15; and
4) you have no symptoms of abuse or dependency. Title 77 Illinois Administrative Code §2060.101 and Title 92 Illinois Administrative Code §1001.10 and following.

The next classification level is “moderate risk”. The minimum moderate risk requirements are completion of DRE and 12-hours of early intervention in an effort to eliminate any future alcohol problems that could lead to another DUI.

Under the DASA protocol, you may be moderate risk only if:

1) this is your first DUI offense;
2) you either do not agree to give a blood or breath test or register at least .15 but under .20; and
3) you have no abuse or dependency symptoms.

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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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