DUI Category Archives — Page 35 of 41 — Illinois DUI Lawyer Blawg Published by Springfield, Illinois DUI/DWI Attorney

Published on: September 9, 2011

The effect of a foreign-state DUI on Illinois driving privileges

If you hold an Illinois driver’s license and receive a Driving Under the Influence (DUI) in another state, Illinois will proceed as follows: If at the time of the arrest, you refuse chemical testing, the SOS will enter a suspension against your Illinois driver’s license and driving privileges for the same period of time as though you had refused testing in Illinois 625 ILCS 5/6-203.1
A DUI suspension is a temporary license sanction imposed for a definite period of time. Once that time elapses, you automatically get your license back upon payment of the appropriate fee, provided driving privileges are not invalid for some other reason. 625 ILCS 5/1-204
One of the things that will invalidate your license and take away the right to automatic restoration is a revocation. 625 ILCS 5/6-208 A revocation is the withdrawal of driving privileges for a period of 1, 5 or 10 years following a conviction.

At the end of that period, restoration of your driving privileges is not automatic. Rather, it is contingent upon a successful hearing before the Illinois Secretary of State.

The Secretary of State will not suspend your Illinois license if you submit to a breath test during a DUI arrest in another state. However, if you are convicted of the out-of-state DUI, your driver’s license will be revoked. 625 ILCS 5/6-206(a)(6)

Other than determining whether the lifetime driving ban applies (discussed below), the SOS, in determining the length of a revocation, takes into account a DUI conviction from another state only if the rendering state directly reports the conviction to Illinois in compliance with the Interstate Drivers License Compact. DUI convictions that Illinois discovers only through a search of the National Registry/PDPS do not become part of the revocation equation.

If you have no previous DUI revocations that appear on your Illinois driving record, the revocation must be for one year. 625 ILCS 5/6-208(b)(1) Putting aside any credits that may apply, after a year, you may request full restoration of your driving privileges provided that the implied consent suspension has run its course.

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Published on: September 2, 2011

Illinois DUI law enhancements for driving suspended or revoked

By Theodore Harvatin

When you have an Illinois DUI (Driving Under Influence), you face two different possible consequences, a suspension of your driver’s license, as well as fines, jail time and a revocation of your driver’s license.

The driver’s license suspension occurs because you either took a breath or blood test and registered .08 or higher, or you declined to submit to such testing upon request. In the first case, your driver’s license would be suspended for 6 months if you have not had a previous DUI arrest for the last 5 years and 12 months if you have had an arrest within the past 5 years.

If you did not agree to testing, your license would be suspended for 1 year if you have not had a DUI in the last 5 years. If you have had a DUI in the previous 5 years, you will suffer a suspension of 3 years. All the rules for breath test suspensions are in 625 ILCS 5/6-208.1
A DUI-related suspension (at times referred to as an “implied consent suspension”) is a temporary license sanction imposed for a definite period of time. Once that time elapses, you are automatically free to drive upon payment of the appropriate fee, provided driving privileges are not invalid for some other reason. 625 ILCS 5/1-204
The other challenge you face relates to the criminal charges associated with the DUI arrest. Here, you can be required to pay fines and or serve jail time. In addition, with a conviction, your driver’s license will be revoked. 625 ILCS 5/6-205(a)(2)

A DUI-related revocation is the withdrawal of driving privileges for a period of 1, 5 or 10 years following a conviction. 625 ILCS 5/1-176 At the end of that period, restoration of an offender’s driving privileges is not automatic. Rather, it is contingent upon a successful hearing with the Illinois Secretary of State, Illinois’ licensing authority. 625 ILCS 5/2-118; 5/6-208
You be have heard about people who are arrested for DUI and driving on a suspended or revoked license. The suspension occurs 46 days after the police serve you with notice of a statutory summary suspension.

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Published on: August 19, 2011

Springfield Illinois man faces Aggravated Driving Under the Influence charges

By Theodore Harvatin

The State Journal-Register, the Springfield Illinois daily, reports that a man was arrested for Driving Under the Influence (DUI). The story alleges that the accused drove into a front yard and hit a parked car, after which he left the scene. Police have charged him with aggravated DUI. The article does not lay out the facts that would explain why the DUI was aggravated.

Leaving the scene of a collision involving property damage is a Class-A misdemeanor (625 ILCS 5/11-402) punishable by up to 364 days in the county jail and/or a fine of up to $2,500. In addition, if the damages exceed $1,000.00, the Illinois Secretary of State will suspend the offender’s driver’s license for a period of one year upon conviction 625 ILCS 5/6-206(a)(21)

On the other hand, if a driver is convicted of leaving the scene of an accident in which someone suffers personal injury or death, even if the injury is only to the driver who fled, that person is guilty of a Class 4 felony in accordance with 625 ILCS 5/11-401 The Secretary of State will revoke the convicted person’s driver’s license for a period of one year. 625 ILCS 5/6-205(a)(4)

A revocation differs from a suspension in this respect: once a suspension period ends, the Secretary of State would automatically return your driver’s license upon payment of the reinstatement fee. If you are revoked, you must have a driver’s license hearing with the Secretary of State.

The penalty for leaving the scene is similar to that which a DUI arrest carries. The reason is that it is felt many people flee the scene of an accident because they are attempting to avoid a DUI arrest. Those persons who cause injury and flee should, the thinking goes, explain themselves to the Secretary of State.

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Published on: August 5, 2011

Blood tests and Illinois DUI accidents

By Theodore Harvatin

Illinois DUI law provides law enforcement with several different means of demanding blood tests to determine the presence of alcohol or other drugs, including prescription medication, in drivers. These provisions rely upon the concept of ‘implied consent”. In other words, when you choose to operate a motor vehicle upon the public roadways of Illinois, you have indirectly given your consent to be subjected to these tests if certain conditions exist. 625 ILCS 5/11-500 et. seq.

In any DUI arrest situation, the police have the choice to ask you to submit to a blood test. Because of the time and expense involved, if the arresting authorities believe that the cause of your alleged intoxication is alcohol and if there was no accident requiring immediate medical treatment, most likely they will rely upon a breath, rather than blood, test. The results of breath tests are ordinarily immediately available.

On the other hand, not all DUI charges require proof of actual impairment from alcohol, other drugs or prescription medication, or proof that your blood alcohol level (BAL) exceeds .08. These so-called “per se” violations require the police to show that ANY amount of a banned substance is still in your system, even if the amount detected was not enough to impair your driving ability.

Breath tests will not detect drugs. Urine tests will not detect the very small quantities that police may suspect. Proof normally requires a blood test. Absent an accident, you are entitled to refuse to submit to such tests.

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Published on: July 29, 2011

Illinois DUI arrest begins with 911 tip

By Theodore Harvatin

A woman in Carmi, Illinois was recently arrested for Driving Under the Influence (DUI). There are several interesting questions that this article reporting the arrest raises.

The driver was first brought to the attention of the police due to an unidentified citizen’s report, made through a 911 call, of erratic driving. The 911 call alone could, under the proper circumstances, allow the police to stop a driver and investigate a DUI. However, such a stop would be justified only if the caller identified himself or otherwise had presented “indicia of reliability” such as being known as a reliable informant based upon past contact with law enforcement. Alabama v. White, 496 U.S. 325, 110 L.Ed.2d 301, 110 S.Ct. 2412 (1990); People v. Ertl, 292 Ill.App.3d 863, 686 N.E.2d 738, 226 Ill.Dec. 955 (2d Dist. 1997)

Thus, in the case of the Carmi woman, the anonymous phone call would not, without any other evidence, be sufficient to justify the police stopping her. On the other hand, the police do have grounds to stop a driver if the officer has a reasonable suspicion the driver has committed, or is about to commit, an illegal act, including traffic offenses. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968)

The phone call brought the driver’s vehicle to the officer’s attention. He then followed the car and claimed to have notice a traffic violation; she made a wide turn and nearly struck oncoming traffic. It is significant to keep in mind that the officer’s observation of a traffic violation need not be correct, so long as he held a good faith belief in its validity.

Thus, a parade of witnesses testifying that there was no wide turn would not present a defense to the initial stop if the officer was able to testify convincingly that he believed he saw the driver make a wide turn. By contrast, if the officer believed that the driver had committed an illegal act but the act was not in fact illegal, the stop would not be justified. People v. Cole, 369 Ill.App.3d 960, 874 N.E.2d 81, 314 Ill.Dec. 171 (4th Dist. 2007)

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Published on: July 22, 2011

Breath test considerations in Illinois DUI arrests

By Theodore Harvatin

It you are arrested for Driving Under the Influence (DUI) in Illinois, the police, upon having reason to believe you are under the influence of alcohol or other drugs, or have any amount of a prohibited substance in your blood, breath or urine, are authorized to ask to you submit to chemical testing to detect the presence of such substances. In the case of alcohol, such tests can be used to ascertain your blood alcohol level (BAL). 625 ILCS 5/11-501.1
The choice of tests is within the discretion of the officer; the accused’s request to provide a type of test different from that which the officer has demanded is deemed a refusal. People v. Kaegebein, 137 Ill. App. 3d 837, 92 Ill. Dec. 656, 485 N.E.2d 467 (2 Dist. 1985) The use of urine tests is normally confined to situations in which the officer believes the accused has drugs in his system, as urine tests do not provide an accurate BAL reading.

Breath tests are, unless the suspect is injured and taken to the hospital, normally used to determine the BAL. If the defendant is taken to the hospital and a physician draws blood for the purpose of medical treatment (“medical draw”) the results are admissible in the DUI prosecution. On the other hand, for the purpose of imposing a statutory summary suspension (“SSS”), the defendant is given the right to refuse.

Chemical tests (blood, breath or urine) that are admissible in the DUI prosecution must be administered under specific procedures, by certified machines and operators. In contrast, for SSS purposes, the officer is authorized to request a portable breath test (“PBT”). The results of such a test, or the refusal, are not admissible in the DUI prosecution. 625 ILCS 5/11-501.5
Every DUI lawyer hears the question, if the opportunity ever presents itself, should I take the test? A “first offender” is someone who has not, in the previous five years, been convicted of, received court supervision for, or incurred a statutory summary suspension arising from, a DUI (unless at the time of the prior offense the offender submitted to chemical testing and was found not guilty of the DUI).

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Published on: July 15, 2011

Illinois driver’s license hearings following a fatal crash

By Theodore Harvatin

At some point in the early 1980’s, two people died in Illinois as a result of being struck by a drunk driver. Records showed that the driver had previously lost his license due to a DUI arrest. His license had been reinstated following a Secretary of State driver’s license hearing.

In those days, the hearings primarily consisted of the revoked driver explaining how the loss of his license was causing him hardship. He would swear to never drink and drive again and would submit letters or affidavits from 3 people attesting to his good character. Reinstatement was almost automatic.

After this information became public, Jim Edgar, a state representative from the Charleston area, vowed to take on the liquor lobby. He rode the political wave to huge electoral success as Illinois Secretary of State (and later became Governor).

Thus was born the more rigorous Secretary of State administrative hearing process. Suffice it to say that the Secretary of State takes any driving-related fatality, particularly those involving alcohol or other drugs, very seriously, as does the Illinois General Assembly.

Until January 1, 2011, the Secretary of State (SOS) could, but was not required, to suspend or revoke the driving privileges of an at-fault driver who was involved in a non alcohol-related fatality. 625 ILCS 5/6-206(a)(4); 92 Illinois Administrative Code (IAC) §1040.46. The driver’s license sanction the SOS imposed depended upon the number of points accumulated on the driving record, in accordance with this administrative rule.

In 2009, a young lady, while texting and driving, struck and killed a bicyclist. Her offense was minor enough that the SOS did not impose any driver’s license sanctions.

Outrage ensued. She killed someone, how can this be! As a result, the law and administrative rules now provide that if you are convicted of a traffic offense that caused a fatal accident, the SOS is required to revoke your driver’s license and you must have a hearing with his office in order to restore your license. 625 ILCS 5/6-205(a)(16); 92 IAC §1040.46(a) and (h).

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Published on: June 24, 2011

Negotiating the Illinois Secretary of State’s administrative rules pertaining to risk levels

By Theodore Harvatin

In Illinois, the rules and regulations that govern administrative agencies are found in the Illinois Administrative Code (“IAC”). These rules must be promulgated in accordance with the Administrative Procedure Act (“APA”) 5 ILCS 100/1-1 et. seq.

In general, a proposed rule is published in the Illinois Register, giving the public an opportunity to comment and in some cases testify about the proposed rule before the Joint Committee on Administrative Rules (“JCAR”). JCAR is a joint committee of the Illinois Senate and House whose duty is to review proposed administrative rules.

The Illinois Secretary of State is an “administrative agency”. As such, his office is subject to the APA and the IAC. Clingenpeel v. Edgar, 133 Ill.App.3d 507, 487 N.E.2d 1172 (4th Dist. 1985). (Coincidentally, the Secretary of State is the record keeper for the administrative rules of all state agencies).

The IAC applicable to the Secretary of State is found at Title 92 (Transportation), Chapter II, beginning at part 1000. In addition, in some circumstances, the rules and regulations of the Secretary of State cross over into those that govern the Division of Alcohol and Substance Abuse (“DASA”). DASA’s pertnient rules are at 77 IAC §2060.101
When someone who is arrested for DUI is subsequently found guilty of that offense, the court will probably require the offender to obtain a drug and alcohol evaluation. The contents and form of the evaluation are governed by DASA rules.

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Published on: June 10, 2011

Illinois DUI and other alcohol related offenses for young adults

By Theodore Harvatin

Illinois law has special provisions pertaining young adults (those under the age of 21) who experience alcohol related incidents. Perhaps surprisingly, several of these offenses can cause a suspension or revocation of driving privileges even though they were not committed in a driving-related context.

A suspension is for a definite period of time. When the time period ends, your license will be returned to you automatically provided it is not otherwise valid. By comparison, if your driver’s license is revoked, you must have a Secretary of State hearing at which you will be required to prove that you are entitled to restoration of your driving privileges.

If you are under 21 and receive a traffic ticket and the officer suspects that you may have been drinking, you will be asked to take a breath test. If you take the test and register above .00, or if you decline to take the test, you will be subject to a driver’s license suspension under the Zero Tolerance (“ZT”) laws. Driving with any amount of alcohol in your system is illegal.

If you do blow over .00, your license will be suspended for 3 months. If you refuse to blow, you will be suspended for 6 months.

If this is your second ZT ticket and you blow over .00, your license will be suspended for 1 year. If you refuse, it will be suspended for 2 years.

As a young adult, if you are convicted of illegal transportation of alcohol (open container in your vehicle) as a driver, your license will be suspended for 12 months. If you are convicted twice of that offense, your license will be revoked for a minimum of 12 months, following which you must have a Secretary of State hearing.

Those under 21 can have their driver’s license suspended for conduct that, if committed by someone over 21, would have no consequences. The Liquor Control Act of 1934 essentially makes it illegal for someone under 21 to possess, consume or purchase alcohol beverages. This is commonly referred to as a “drinking ticket”.

If you receive a drinking ticket while occupying a motor vehicle. your driver’s license will be suspended for 3 months if you receive court supervision for the offense. If you are not granted supervision and are convicted of the offense, your driver’s license will be suspended for 6 months. Prior to a case known as Webb v. White, all drinking tickets result in a 12-month suspension.

The Secretary of State has reasoned that a young adult who is consuming alcohol illegally is at great risk to be the type of person who may drink and drive in the future. The courts, in a case known as Freed vs. Ryan, have accepted this argument.

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Published on: June 3, 2011

How Driving Under the Influence (DUI) affects visits to Canada

By Theodore Harvatin

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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