DUI Category Archives — Page 32 of 40 — Illinois DUI Lawyer Blawg Published by Springfield, Illinois DUI/DWI Attorney

Published on: February 10, 2012

Congress gets behind interlock devices

For most of this country’s life, matters dealing with local public safety, including DUI and traffic laws, have been the responsibility of state government. The one notable exception has been the rules of the road governing traffic on the Interstate highway system, whose funding comes primarily from the federal government, and of course the Interstate highway systems crosses the boundaries of all the states.

Beginning in 1984 and continuing to this day, that changed. While beyond the Commercial Driver’s License CDL law Congress has not explicitly injected itself into traffic laws, it has done so indirectly. When it wants states to do something, Congress uses the coercive power of the purse: if a state does not pass a law Congress believes it should, Congress withholds federal highway money.

Prior to 1984, the age at which a person could purchase, or possess, or consume alcohol varied among the states. In Illinois, the age for beer and wine was 19, and it was 21 for distilled alcohol. In Iowa, the age for all alcoholic beverages was 18.

Today, the drinking age in Illinois is 21. 235 ILCS 5/6-16 It is the same in all 50 states. No state wants to forfeit federal highway funds.

At one time, each state was free to set its own legal limit for blood alcohol content, or to have no limit at all. In Illinois, the limit was initially 15, later lowered to .10. Today, it is .08. (625 ILCS 5/11-501(a)(1)), as it is in all 50 states. The reason for this is, that’s how the federal government wants it to be.

The federal government has gotten involved more directly pertaining to CDLS It has been accepted that because over-the-road truckers cross state boundaries, a uniform set of laws benefits both the motoring public and the trucking industry. While the federal government has not written a specific CDL law, it has set forth guidelines that all states are required to follow at the risk of losing their ability to issue CDLS if they fail to do so. Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Title XII of Pub. Law 99-570) [49 U.S.C. § 2701 et seq.]

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Published on: February 3, 2012

Sangamon County Driving Under the Influence and Loss of Driver’s License

By Theodore Harvatin

In Pennsylvania, until you are convicted of a DUI charge, you will ordinarily not lose your driver’s license. However, one Pennsylvania judge does require certain offenders to surrender their driver’s license without a guilty finding.

There are a number of DUI laws that are uniform throughout all 50 states. Illinois, like the other 49 states, makes it illegal to operate a motor vehicle with an alcohol concentration of .08 or greater “blood or breath units” 625 ILCS 5/11-501(a)(1) “Alcohol concentration” means “either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath”. 625 ILCS 5/11-501.2(a)(5)

Blood concentration is measured by drawing blood from you body, analyzing the results and determining what percentage of your blood contains alcohol. Qualified medical personnel must draw the blood, and the testing must be performed in accordance with procedures that the Illinois State Police establish and publish in administrative rules. 625 ILCS 5/11-501.2(a)(1); 20 Ill. Admin. Code §1286.320
As an alternative, law enforcement may turn to breath testing. In this type of testing, you will expel air from your lungs into a machine. The machine supposedly converts the air in your lungs into an equivalent quantity of alcohol in your bloodstream.

The results of this test can lead to a DUI conviction.The testing procedures are regulated by State Police Rules 20 Ill. Admin. Code §1286.200
In most circumstances, you have a choice about whether or not to submit to testing. Some exercise the choice to not test because they do not trust the science. This is logical, as the blood and breath test both involved a number of procedures, and errors do occur.

In a prosecution for DUI, the burden is on the state to establish that the test was conducted in compliance with the applicable Illinois State Police Breath Testing regulations. People v. Emrich, 113 Ill.2d 343 (1986) It violates the Constitution for the state to require you to prove the machine was defective once you have cast doubt upon its reliability. People v. Orth, 124 Ill.2d 326 (1988)

Some parts of the Illinois DUI laws differ from the laws of other states. For instance, your driver’s license can be suspended before you have ever been convicted of a DUI. In fact, a suspension can remain in effect even if the DUI charge is dismissed or you are found not guilty.

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Published on: January 27, 2012

St. Clair County man charged with Driving Under the Influence (DUI) and driving while suspended

By Theodore Harvatin

A driver from O’Fallon, Illinois, located in St. Clair County, was arrested for DUI. He was also charged with driving on a suspended license due to an earlier DUI charge.

In the State of Illinois, it is illegal to drive while under the influence of alcohol. The law, or as it is known in Illinois, the statute, is part of the Illinois Vehicle Code (Chapter 625 of the Illinois Revised Statutes). The entire DUI statute is 625 ILCS 5/11-501. There are six subparts to the law.

The first two deal with driving under the influence of alcohol and driving with a blood alcohol level of .08 or greater. The other four are concerned with DUI drugs, both illegal, including marijuana, and prescription medications, as well as other “intoxicants” (for instance, “huffing” paint fumes). 625 ILCS 5/11-501(a)(3)–(a)(6)

The driver was also charged with driving with a suspended license resulting from an earlier DUI arrest. There is a difference between a suspended or revoked license.

Your driver’s license is revoked from a DUI charge only if you are convicted of the DUI, which requires the state to prove you 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) Your license will be revoked for 1, 5 or 10 years, depending upon your prior record.

Should this be your first DUI conviction, you will be revoked for one year. If this is your second conviction within 20 years, your license will be revoked for 5 years. Three convictions, no matter when they occurred, leads to a revocation of your license for 10 years. 625 ILCS 5/6-208
During the time of your revocation, you may be eligible to apply for a restricted driving permit (RDP). This relief is available 30 days after a revocation following your first DUI conviction. If it is your second or third conviction, you may not apply for the RDP for one year. 625 ILCS 5/205(c)(3).

Even with all the above, you may not be eligible for an RDP if your statutory summary suspension (SSS) is in effect. The SSS and the DUI ticket are different processes.

The SSS only applies to your driving privileges and does not require the state to prove you were under the influence. The state must simply show either that you took a breath test and registered .08 or higher, or elected not to take a breath test (“refusal’).

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Published on: January 20, 2012

Former firefighter sentenced to jail in connection with Champaign County DUI charge

By Theodore Harvatin

A former Urbana (Champaign County) firefighter has been sentenced to jail. At the time of the offense, he was under a court ordered conditional discharge as a result of a previous conviction for driving under the influence (DUI).

In the state of Illinois, there is a law that makes it illegal to drive under the influence of alcohol, commonly referred to as DUI. The law in question provides in part 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…” 625 ILCS 5/11-501
It is possible to be charged with non-alcohol DUI. For example, under Section 11-501, it is also illegal to drive while:
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.

However, the majority of the DUI arrests and prosecutions in Illinois involve alcohol. With regard to alcohol, there are two types of DUI charges in Illinois.

You can be charged with driving with a blood alcohol content of .08 or greater. 625 ILCS 5/11-501.2 Under these so-called “per se” prosecutions, the state need not prove that your ability to drive was actually impaired by alcohol. The mere fact you were driving with a blood alcohol content of .08 or greater is a crime. People v. Ziltz 98 Ill.2d 38, 455 N.E.2d 70 (1983)

An alcohol-related DUI can also be based upon the fact, as stated in the Illinois Pattern Jury Instructions (IPI) that “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 The state is not required to prove that you were “drunk” or “intoxicated” but simply that you were impaired to a degree to reduce your ability to think and act with ordinary care.

The firefighter was convicted of DUI in April 2010. He pled guilty. At that point, he was eligible for court supervision but did not receive it.

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Published on: January 13, 2012

Will County man charged with third Driving Under the Influence (DUI) charge in less than a year

By Theodore Harvatin

In November 2011, a Will County man was arrested for DUI for the third time in less than 12 months. Laws in Illinois are created in two ways. The first is judge made law, known as “case law” because it is decided based upon specific cases.

The second type of law is known as “statutory law” or legislation. These are the rules (“legislation”) that are written by our elected representatives. In Illinois, this legislature is known as the Illinois General Assembly.

Relevant to this discussion is 625 ILCS 5/11-501, et. seq. the DUI statute, which reads in relevant part: (a) A person shall not drive or be in actual physical control of any vehicle within this State while “under the influence of alcohol”. Many (incorrectly) refer to this as “drunk driving”.

Such a designation leaves one with the impression that DUI requires the state to demonstrate that you were highly intoxicated (“falling down drunk”). Instead, the state need only prove, beyond a reasonable doubt, that you were under the influence of alcohol.

This leads to the following jury instruction that defines for the jury what DUI means: “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”. People v. Schneider, 362 Ill. 478, 200 N.E. 321 (1936); Illinois Pattern Instruction (Criminal) 23.29
As a result of his third DUI arrest, the Will County driver faces the following potential consequences: First, he could receive a felony conviction for aggravated DUI 625 ILCS 5/11-501(d)(1)(A) Assuming no additional aggravating factors, such as a transporting a child under the age of 16 years, death of one or more other persons, a BAC of .16 or greater, the offense is a Class 2 felony. 625 ILCS 5/11-501(d)(2)(B) Such an offense is punishable by a fine of up to $25,000 and/or 3-7 years in the state penitentiary as stated in 730 ILCS 5/5-4.5-35

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Published on: December 30, 2011

Edgar County woman faces charges of aggravated Driving Under the Influence (DUI)

By Theodore Harvatin

A woman from Paris, Illinois, county seat of Edgar County, faces charges of aggravated DUI. In this tragic incident, the defendant (the accused) was allegedly driving south in the northbound lane when her vehicle struck an oncoming vehicle causing a crash. As a result of the crash, two passengers on the other vehicle are dead.

In the past, the driver would have been charge with reckless homicide arising from the operation of a motor vehicle. 720 ILCS 5/9-3(b) That law provided that if a person was under the influence of alcohol and was involved in a crash that resulted in death, he was automatically guilty of reckless homicide even without the state having to prove recklessness.

In the criminal law, the state has the burden of proving each element of the crime beyond a reasonable doubt. The Illinois Supreme Court ruled this law violated the Constitution by impermissibly requiring the defendant to prove that he was not reckless, rather than requiring the state to prove that he was. People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003)

The General Assembly has added the offense of aggravated DUI (625 ILCS 5/11-501(d)) “Aggravated” means “extreme” or “especially bad”. Aggravated DUI applies if, while you are operating a motor vehicle under the influence of alcohol, one or more people die and your impaired driving was a “proximate cause” of their death.. 625 ILCS 5/11-501(d)(1)(F) Unlike the reckless homicide law that the Supreme Court held was unconstitutional, this law appears to be constitutional since it requires to state to prove that your impaired driving was the cause of the accident instead of assuming that you were reckless.

Aggravated DUI that results in death is a Class 4 felony punishable by a term of 3-14 years in prison, unless the court finds that “extraordinary circumstances exist” to require probation. However, if two or more persons die, the felony is upgraded to a Class 2 felony and the prison time becomes 6-28 years. 625 ILCS 5/11-501(d((2)(G)

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Published on: December 23, 2011

Accused claims that Illinois DUI law is unconstitutional

By Theodore Harvatin

In 2011, the Illinois Supreme Court handed down its decision in People. v. Martin, 2011 IL 109102. The issue involved a fairly technical legal question known as “causation”.

Causation refers the notion that in the criminal law, a person is responsible for the outcome of an event only if the state is able to prove that something he did in an illegal manner caused the outcome. For instance, if your headlight is not operating properly and someone rear ends you, the state cannot say that you were the cause of the collision even though your car was not in proper working order. In other words, your non-functioning headlight, while illegal, was not in any manner responsible for your being hit from behind.

This idea came into play in the Martin because of the manner in which certain DUI laws are written. Under 625 ILCS 5/11-500, you can be charged with Driving Under the Influence (DUI) in a number of ways.

One way is prove you were “under the influence” of alcohol, drugs, or a combination of the two. Another is to prove that you were driving with a blood alcohol content of .08 or greater. A third is to show that you were under the influence of other intoxicants (huffing for instance).

One can make an argument that if your blood alcohol content is above .08, you are potentially a dangerous driver. The state should not be limited to proving your impairment by reference to your physical condition, actions and conduct at the time of the alleged offense.

Your blood alcohol content alone should be sufficient to show you ought not to have been driving. It would seem that since the purpose of the DUI laws is to keep dangerous drivers off the public roadway, this is a reasonable law.

However, there is one situation in which the state need merely show that you were operating your motor vehicle at a time you had any amount, no matter how small, of a prohibited drug in your system. 625 ILCS 5/11-501(a)(6) Unlike alcohol, which leaves your system relatively quickly, some drugs remain in your body long after (sometime for weeks) you ingested them and well after their presence in your system would impact the mind and body in ways that could make you an unsafe driver.

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Published on: December 15, 2011

McClean County driver sentenced to 20 years in prison for DUI

By Theodore Harvatin

A McClean County judge sentenced a Bloomington-Normal man to 20 years in prison following his 11th conviction for driving under the influence (DUI) In the State of Illinois, it is illegal to operate a motor vehicle on the public roadways while you are under the influence of alcohol. 625 ILCS 5/11-501
There is on one-size-fits-all answer to what the consequences of a DUI conviction are. In general, you would be looking at two separate issues, the criminal side of the DUI (fines, jail, probation) and the driver’s license consequences.

A first or second DUI conviction, absent death or serious injury, is 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 no more than 364 days. 730 ILCS 5/5-4.5-5.5
A third DUI violation is a Class 4 felony. As the number of DUI violations escalates, the potential punishment does as well. 625 ILCS 5/11-501(d). After a sixth or more DUI conviction, you can be charged with a Class-X felony, with no probation and 6-30 years in prison and up to a $25,000 fine. 730 ILCS 5/5-4.5-25
Many DUI violations also require payment of fees relating to DUI prevention, victim compensation and other politically popular causes. The judge will probably also order you to obtain a drug and alcohol evaluation and complete the drink and driving classes (Driver Risk Education, “DRE”) and alcohol counseling.

You must obtain the evaluation from an agency licensed by the State of Illinois, Department of Human Services, Division of Alcohol and Substance Abuse (DASA). DASA has rules as to the minimum number of hours you must complete, and the agency is allowed to increase those hours if it feels the need.

While the rules are somewhat arcane, in general, if you have no previous DUI arrests and you take a breath test and register under .15, your classification would be minimal risk, requiring you to complete a 10-hour DRE course. Title 77 Illinois Administrative Code §2060.101 and Title 92 Illinois Administrative Code §1001.10 and following.

Those same set of rules further provide if you refuse to take a test or register equal to or greater than .15 but less than .20 results and this is your first DUI offense, you must complete the 10-hour course and 12 hours of early intervention alcohol education. If you register .20 or higher and this is your first offense, you are what is known as significant risk and must take the DRE course and 20 hours of alcohol abuse treatment.

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Published on: December 9, 2011

Williamson County, Illinois crash leads to injuries and DUI charges

By Theodore Harvatin

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: 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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