Articles Posted in DUI

When you arrested for DUI, there are two potentially negative consequences. The first is criminal.

You can be sentenced to jail if you are convicted of DUI. The consequences of an Illinois DUI arrest are less severe if you are eligible for, and receive, court supervision.

Court supervision is not considered a conviction. Therefore, your driver’s license will not be revoked. In addition, if you receive court supervision, the judge cannot sentence you to jail time.

Supervision for DUI is available only if you have never previously been convicted of DUI, or received court supervision for DUI, or received reckless driving as part of a plea bargain in connection with a DUI charge. Even if you meet all the criteria, you are not automatically entitled to supervision. The final decision about whether someone who is eligible for supervision receives it lies with the judge.

Since supervision is not entered on your driving record as a conviction, you may mistakenly assume that DUI supervision does not “go on your record”. That is only partially accurate.

The Illinois Secretary of State maintains a list of your driving offenses (this is called the “abstract”). There are two types of abstracts, one being known as the “court purposes” abstract and the other the “public” abstract.

The court purposes abstract is accessible only to the police, the judge, the prosecuting attorney and you. This abstract shows any DUI supervision you receive.

It stays on that record forever. It cannot be expunged. The Secretary of State will not remove it even if you obtain a Governor’s pardon. Therefore, it never really “goes away”.

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In Illinois, “driving under the influence” (DUI) is a shortcut term for a legal offense. The phrase may work in casual conversation and in news reports. However, Illinois law defines the offense of DUI in a very specific manner.

In the American judicial system, there are several ways in which laws are made. Our elected representatives can vote to pass laws that are known as “statutes”. For example, the Illinois General Assembly www.ilga.gov voted for a statute banning smoking in public places.

Starting over 500 years ago, English judges were called upon to resolve disputes among the citizenry. Over the years, the judges laid down various rules that were designed to govern a given factual situation.

These judge-made rules are known as the “common law”. Many common law concepts migrated to the United States when the colonists arrived here. Because of the common law, you cannot build a fence on your neighbor’s property.

If the General Assembly does not like the common law, it can vote to change it. Under common law England, for instance, a tenant had almost no rights because a landowner was considered superior to a renter. Now there are many statutes that protect tenants. If your house or apartment burns down, you can stop paying rent. That was not true under the common law.

Neither a statute nor the common law, however, can make a law that is contrary to the United States Constitution. The Constitution plays a particularly significant role in protect the rights of those charged with crimes, including DUI. Thus, any law must be measured against the rights secured to you under the Fourth Amendment (no unreasonable searches or seizures).

There are over 300 million people in this country engaged in billions upon billions of interactions. No Constitution, statute or common law rule can possibly account for all the possible scenarios that are bound to arise in those circumstances. Therefore, judges are called upon to give their best estimate of how a Constitutional provision or statute had intended to address a given situation.

The DUI statute provides that “[a] person shall not drive or be in actual physical control of any vehicle within this State while under the influence of alcohol.” It does NOT require the police to prove that they 1) saw you driving 2) a truck, car or motorcycle 3) drunk.

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It has not (yet) reached the point where the police can stop the operator of a motor vehicle for no reason whatsoever. You are protected from “unreasonable searches and seizures“. Judges decide where to draw the line between reasonable and unreasonable searches and seizures.

When you are in your house, the police are generally required to have more evidence before they can search your property and seize (arrest) you. In a motor vehicle, you enjoy a lower level of protection from unreasonable searches and seizures.

The police cannot stop a citizen just because “you look suspicious”. Courts have held that the police must have specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion that a stop involves. These are known as invesitgatory stops.

If the police directly observe you committing a traffic violation, such as speeding, they are entitled to stop you for a brief enough period to investigate the traffic violation. That is where your troubles can start.

Once they do stop you for a routine traffic offense, they may then further their investigation if they believe you may be driving under the influence of alcohol. Common signs are an odor of alcohol, bloodshot eyes, slurred speech, open containers in the vehicle and difficulty locating your driver’s license, registration or insurance card.

The police are also entitled to investigate if they find you pulled over to the side of the road, or asleep in your vehicle or after you have been involved in an accident, even if the accident was not your fault. They are also, under proper circumstances, permitted to erect DUI roadblocks.

It can be more complicated when the police do not actually observe you committing an offense but have reason to believe that you may have. A citizen’s complaint, from someone whom the police have reasonable grounds to believe is reliable, will justify a stop.

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The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures”. An arrest, including a DUI arrest, constitutes a seizure.

If a court (judge) finds that a seizure is unreasonable, the arrest is deemed illegal. For the most part, any evidence gathered as a result of the arrest is also illegal.

Due to United States Supreme Court decisions, the remedy for an illegal arrest is to suppress (“throw out”) the evidence. Without evidence, the state cannot prove its case, resulting in dismissal of the charges. (This is what is meant by “a technicality”).

The Constitution does not specify when a seizure is or is not “unreasonable”, a wise choice since what can be viewed as unreasonable in one time and place can be considered reasonable in another. It is left to the courts to decide where to draw the line.

The Illinois court system has three layers. The first is the trial court. This is what most people consider “court” with judges, juries, and presentation of witnesses and other evidence all playing a part.

The next level, if is either side is unhappy with the decision and has the time and money to take it further, is the appellate court. In Illinois, there are five appellate court districts, broken down by geography. So, for instance, the Fourth Appellate District, whose physical location is in Springfield, would hear an appeal from a Macon County (Decatur) case.

Appellate court cases do not involve either party presenting additional evidence. Instead, the lawyers argue the case based upon the evidence presented at the trial court.

Each of the five appellate courts consists of a three-judge panel that, after hearing the arguments and reading the briefs (papers) of the lawyers, issues a written decision usually published for all to read. All trial court judges are required to follow the rules set out in the published appellate court decisions.

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On April 21, 2011, the Illinois Supreme Court, in a unanimous 7-0 opinion, issued a ruling important to Illinois DUI lawyers. Understanding the decision requires some knowledge of Illinois DUI law.

The state has several methods at its disposal to sustain a DUI charge. The traditional means is to prove that as a result of your consumption of alcohol, your ability to drive was impaired. This is the “actual impairment” DUI.

Prosecutors were finding it too hard to prove actual impairment. Therefore, in order to stack the deck against those charged with DUI, the Illinois General Assembly passed DUI laws that make it illegal to drive with a blood alcohol level above the legal limit, which was originally .10 but is now .08.

This number represents the percent of alcohol in your bloodstream. Prosecutions that rely upon the .08 are known as “pro se alcohol” violations.

The per se blood alcohol legal limit can be measured by actual blood samples, which is expensive and time-consuming. So, to make it easier for the state to convict you of DUI, the law allows the police to demand that you give a breath sample by blowing into a mouthpiece connected to a machine (the Breathalyzer). This machine supposedly converts the breath sample into blood alcohol level equivalents.

Sometimes the police claim that a person is under the influence of illegal drugs. This is also illegal but hard to prove as it requires proof of actual impairment from the drugs.

Likewise, you may be taking legally dispensed prescription medications. The police may suspect your medications are impairing your driving. If so, you are guilty of DUI. But again, actual impairment is hard to prove.

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“Civil rights” refers to your right to be free from overreaching government action. There was a time when someone arrested for Driving Under the Influence (DUI) enjoyed the same civil rights as every other citizen. Not so much any longer with DUI (and a few other politically unpopular crimes).

In the realm of DUI law, we are primarily dealing with the Fourth Amendment right to be free from unreasonable searches and seizures. To a lesser extent, there are issues of self-incrimination enshrined in the Fifth Amendment (“Miranda rights”) and the Sixth Amendment right to counsel.

You should understand that there are essentially two related but separate aspects to a DUI offense. The first, and the one that generally has the most immediate impact, involves driver’s license suspension, revocation and reinstatement. The other is the DUI charge, a criminal offense.

During a DUI arrest, you will be asked to perform standard field sobriety tests, including the Horizontal Gaze Nystagmus (HGN), the one-legged stand and the walk-and-turn test. You should also anticipate being asked to perform a portable breath test (PBT).

Although your performance on these tests will be used to determine whether or not you are arrested for DUI, you are not entitled to demand the presence of an attorney while you perform them. Your only options are to refuse to perform the tests (which can and will be used against you in a court of law) or take the tests and risk incriminating yourself.

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