Illinois DUI Lawyer Blawg

Published on: October 18, 2013

DUI arrests and “actual physical control”

The Illinois DUI law does not say that you must be “driving” a motor vehicle to be charged with DUI. The law reads in part: “A person shall not drive or be in actual physical control of any vehicle within this State while” (under the influence).

One issue involves what is a “vehicle”. Keep in mind, the law does not limit the offense to something that requires a license to drive or that requires having a license plate.

Any device or implement for transporting human beings, other than human powered devices and snowmobiles, is a “vehicle” (625 ILCS 5/1-217) As such, it is illegal to operate that device while under the influence. This includes tractors, riding lawn mowers, moped and ATV’s. 296 People v. Martinez, 296 Ill. App. 3d 330, 694 N.E.2d 1084, 230 Ill. Dec. 806, 1998 WL 229582 (1998) However, a bicycle, being human-powered, is not a “vehicle” and therefore not subject to the DUI laws. Standard Mut. Ins. Co. v. Rogers, 381 Ill. App. 3d 196, 884 N.E.2d 845, 318 Ill. Dec. 877, 2008 WL 795294 (2008)

Another aspect of the offense of DUI (Driving Under the Influence) involves where and when it is illegal. In that connection, the law makes it illegal to drive under the influence “within this State”. Given this language, Illinois courts have held that DUI is a crime even if committed on private property. People v. Bailey, 243 Ill. App. 3d 871, 612 N.E.2d 960, 184 Ill. Dec. 84, 1993 WL 127621 (1993)

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Published on: October 11, 2013

Six ways to be charged in Illinois with DUI

By Theodore Harvatin

The offense of Driving Under the Influence (DUI, which is the same as DWI or Drunk Driving but the legal term is DUI) most often involves alcohol. However, under Illinois DUI law, it also covers other offenses.

The standard and classic DUI involves being in actual physical control of a motor vehicle while under the influence of alcohol. Grounds for an arrest may include evidence of bad driving, poor balance and coordination, substandard performance on standardized field sobriety tests and other general observations of the police officer, such as slurred speech and bloodshot eyes.

A second type of alcohol-related DUI offense involves what are known as “per se” charges. This is a Latin phrase that essential means “automatic”.

The prosecutor may lack the evidence needed to convict you of DUI under the situations described above. However, the per se law says it is also DUI for you to drive with a blood alcohol level (BAL) of 08% or more. This charge can be proven by blood or breath tests, both of which are known as “chemical tests”.

Chemical tests are different from the preliminary breath test (PBT) . The PTB is administered in connection with the process that involves determining whether or not you are going to be arrested for DUI.

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Published on: October 4, 2013

Teen drivers and DUI charges

By Theodore Harvatin

Regardless of a driver’s age, anyone in Illinois charged with Driving Under the Influence (or DUI,DWI or drunk driving-it all means the same thing) is facing some potentially serious legal consequences. Those become more severe as the number of prior offenses mount. And for someone who is under 21 at the time of the offense, even a first offense has the potential to create serious driver’s license consequences under Illinois law.

The first DUI charge is a class-A misdemeanor that may result in a fine of up to $2,500. Furthermore, in addition to, or instead of a fine, the judge may impose a sentence of up to 364 days in the county jail. 625 ILCS 5/11-501
Aggravating factors, such as a death or serious injury, can boost even a first offense to the felony level and three to seven years in prison. In the case of death, the court may impose imprisonment terms of up to fourteen years under felony enhancement provisions.

A second but related issue involves driver’s license suspensions and revocations. A suspension is a less severe sanction to the extent that once the period of time under the suspension is over, your license is automatically restored upon payment of the appropriate fee, provided your license is otherwise valid.

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Published on: September 27, 2013

Four DUI arrests in three years will lead to driver’s license consequences for Illinois woman

By Theodore Harvatin

It is never a good or fun thing to be arrested for Driving Under the Influence (or DUI) in Illinois. There will be fines and maybe jail time, alcohol classes and legal fees. Moreover, there will be driver’s license consequences from an Illinois DUI arrest.

As the DUI arrests pile up, the driver’s license consequences grow more severe with each arrest and with each conviction. A rather extreme example involves a Madison County Illinois woman who has been arrested for DUI on four occasions in three years.

Supposing that for the first offense, she was granted court supervision. Keep in mind that only a first offender has even a chance for DUI supervision.

Anyone who has been: previously convicted of DUI; received court supervision for DUI; been charged with a DUI that was reduced down to reckless driving; or been charged with a DUI that was dismissed but who incurred a statutory summary suspension (SSS) either for registering a blood alcohol level (BAL) of at least .08 or who refused to take a test, is ineligible for supervision, unless they took a test for the prior DUI and a judge or jury entered a finding of not guilty.

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Published on: September 20, 2013

Driving without a license

By Theodore Harvatin

Illinois driver’s license law requires most individuals who wish to operate a vehicle on the public roadways of Illinois to possess a valid driver’s license issued by Illinois. (625 ILCS 5/6-101) Moreover, under the Full Faith and Credit Clause of the United States Constitution, Illinois must recognize a driver’s license issued by any other state.

At this juncture, a word about an International Driver’s License is in order. The ones that you buy on the Internet are worthless and afford you no legal protection.

These should be distinguished from the International Driver’s License that the Illinois Secretary of State will issue to a driver from another country who provides proof that they hold a valid foreign license. In reality, what the Secretary of State does is issue the foreign national a temporary Illinois driver’s license that is backed up by a valid license from another country, which is what distinguishes it from the Internet junk.

Back to the matter at hand, let’s suppose you do not have a valid license, either because you never obtained one or the one you had has expired or been canceled for some reason. If you are caught driving, you are guilty of the offense of driving without a valid license.

While somewhat serious, a conviction for this offense will probably not land you in jail. Most prosecutors will in fact dismiss the ticket if you are able to obtain a valid license for court. And even absent that, you are likely to receive court supervision, at least for a first or second offense.

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Published on: September 13, 2013

Youthful offenders face added driver’s license consequences for alcohol-related offenses

By Theodore Harvatin

Under Illinois law, a licensed driver under the age of 21 (hereinafter “youthful offender”; “minor” is not the correct term because the age of majority in Illinois is 21) faces additional issues when alcohol or drug use enters the legal system.

Starting with the offense of Driving Under the Influence (also known as DUI, DWI or drunk driving), any driver who is arrested for DUI will be asked to submit to a chemical test (either breath or alcohol) to determine the Blood Alcohol Level (BAL). The results of the test are admissible to prove the offense of DUI with a BAL of .08 or higher. (625 ILCS 5/11-501.2)

This type of DUI does not require proof of intoxication. The act of operating a vehicle with an excessive BAL is in and of itself a crime. (625 ILCS 5/11-501) However, as a practical matter, a jury may be reluctant to convict a driver of DUI when, other than the BAL reading, the driver appears to be sober.

This argument does not help a youthful offender. They are subject to the “zero tolerance” (ZT) law. The ZT law provides that a youthful offender who has an alcohol reading above zero is in automatic violation of the ZT law. The state need not present evidence that the driver was impaired. Or that the driver’s BAC was a specific level as long as it is above zero.

And the youthful offender does not have a right to contest the ticket in court. This can only occur in a hearing with the Secretary of State in which the issues are extremely narrow:

(1) whether the police officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle
(2) whether the person was issued a Uniform Traffic Ticket
(3) whether the police officer had probable cause to believe that the driver had consumed any amount of an alcoholic beverage
(4) whether the person refused or if not a refusal, whether the person registered above 0.00 (625 ILCS 11-501.8)

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Published on: September 6, 2013

Driver’s license hearings formal versus informal

By Theodore Harvatin

According to the Illinois DUI law, anyone who is arrested for Driving Under the Influence could face a driver’s license suspension for a period of between six months and three years. (625 ILCS 5/6-208.1) Unless challenged by first filing a petition to rescind the statutory summary suspension (SSS) and then succeeding at a hearing, the suspension is automatic if a driver is asked to take a chemical test and either refuses to do so or does so and registers a blood alcohol level (BAL) of .08 or higher.

A “chemical test” is either a blood test taken at a medical facility at the request of the arresting officer or a breath test administered with the use of a certified device, typically located at a police station. (625 ILCS 5/11-501.2) A preliminary breath test is a less sophisticated device that is not certified for accuracy and the results cannot be used as direct evidence in a DUI prosecution.

The SSS will begin on the 46th day following the arresting officer’s service on the defendant of a Law Enforcement Sworn Report. This is a paper by which the officer documents the fact the suspect was read warnings about the consequences of either taking the test and registering at least .08 or of refusing the test, as well as the outcome of the results of that warning (either a BAL reading or a refusal).

The accused has 90 days to file a petition to rescind the SSS and the state must set the petition for hearing within 30 days after the petition is filed. A judge, not a jury, decides whether or not to rescind the suspension.

While the SSS is in effect, the driver may be entitled to a Monitoring Device Driving Permit (MDDP) that allows driving wherever, whenever and why ever the driver wishes. In order to receive these unlimited driving privileges, the driver must wait out the first thirty days of the SSS and then agree to use an Interlock device that, by requiring the driver to blow into a tube attached to the Interlock device, detects breath alcohol if any is present.

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Published on: August 30, 2013

The Driver’s License Compact and Illinois driver’s license hearings

By Theodore Harvatin

When the holder of an Illinois driver’s license is convicted of Driving Under the Influence (DUI) or receives court supervision. the clerk of the circuit court (for lack of a better term, the clerk serves as the judge’s “secretary”) is supposed to report this disposition (outcome) to the Illinois Secretary of State. 625 ILCS 5/6-204 The Secretary of State then records that disposition to the offender’s driving record. The printed out version of the driving record is known as the driving “abstract”.

The importance of this reporting is twofold. As to DUI court supervision, it is available only once in a person’s lifetime. Furthermore, if the person already has a DUI conviction, supervision is not available even once. If the supervision is not recorded to the driving abstract, the judge and prosecutor are unlikely to realize that a person with a prior supervision or conviction for DUI is not eligible to receive it again.

A DUI conviction results in a revocation of the driver’s license and driving privileges. 625 ILCS 5/6-205 Restoration of those privileges requires a driver’s license hearing.

A failure to report a DUI conviction may lead to driving privileges being incorrectly kept in place, at times for many years. However, there is no “statute of limitations” when it comes to how long the clerk has to report, and the Secretary of State has to act upon, a conviction for DUI.

While this does seem unfair, the Secretary of State takes the position that he is only fallowing the law in that he is required to revoke driving privileges upon being notified of a DUI conviction. His office has however adopted a policy that if the revocation is reported more than two years after the conviction was entered, the person’s eligibility for reinstatement will be calculated as though the conviction had been reported ten days after it occurred.

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Published on: August 23, 2013

DUI pled down to reckless driving versus supervision

By Theodore Harvatin

Most individuals would be concerned with being convicted of DUI (Driving Under the Influence) because of the fines and other penalties, including the possibility of up to 364 days of county jail time. However, often the most profound impact involves the Illinois DUI driver’s license consequences.

There is a Statutory Summary Suspension (SSS) that lasts at least six months and could run for as long as three years. The latter time period applies if the driver has been in DUI trouble within the previous five years and has, with regard to the pending DUI, refused a chemical test designed to determine the Blood Alcohol Level (BAL). (625 ILCS 5/6-208.1) That is a substantial length of time and under Illinois law, the offender is not allowed to drive for any reason during the entire time period.

Although someone with a DUI in the last five years who takes the test will be suspended and not allowed to drive, the suspension will only last for one year. By contrast, a driver who has been DUI-free for at least five years and who takes a test will incur a suspension for six months and if the driver refuses the test, will be suspended for twelve months.

Those with no offense in the previous five years are entitled to drive during all but the first thirty days of their suspension, provided they agree to install an Interlock Device that will not allow the car to start until they breath into a machine that detects alcohol. This special type of permit is known as a Monitoring Device Driving Permit (MDDP).

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Published on: August 16, 2013

Galesburg man arrested for DUI after crashing into a house

By Theodore Harvatin

One of the most obvious means of being arrested for Driving Under the Influence (also known as DUI, DWI or drunk driving) is to crash the vehicle you are operating into the side of a house in the early morning hours. This is precisely what happened to a man who was arrested for DUI in Galesburg, Knox County, Illinois.

The National Highway Traffic Safety Administration (NHTSA) has developed 24 cues to assist law enforcement in detecting possible impaired driving. (See the NHTSA Manual for the Visual Detection of DWI Motorists). NHTSA has broken the cues down into categories.

One category is problems maintaining a proper lane. In that group there would be weaving within a lane, weaving across lane markers, straddling the markers, drifting, swerving, almost striking another vehicle or other fixed object and a wide turn or drifting while going around a curve.

A second set of driving behaviors that suggests impairment includes speed and braking problems. Within this category are stopping too far, too close or too suddenly, slowing down or speeding up for no apparent reason, varying the vehicle’s speed and driving at least 10 MPH under the posted limit.

The third class of cues is referred to generally as vigilance problems. Specifically, this encompasses driving in the oncoming lane or the wrong direction on a one-way street, a slow response to traffic signals, slowness or failure to respond to officer’s signals, stopping in a lane for no obvious reason, driving at night without headlights and failure to signal.

Finally, judgment problems are indicative of impairment according to NHTSA. This includes following too closely, unsafe lane changes, illegal or incorrectly executed turns, driving in an area not designated for vehicles, unusual behavior (arguing, crying, throwing things).

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