Illinois DUI Lawyer Blawg

Published on: September 13, 2013

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

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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Published on: August 9, 2013

Boating Under the Influence may effect your Illinois Driver’s LIcense

By Theodore Harvatin

Illinois DUI law provides that it is illegal to operate a motorized vehicle on the public roadways if the driver is in actual physical control of the vehicle while under the influence. 625 ILCS 5/11-501 Evidence of driving under the influence consists of general observations, such as poor driving, the interaction with the officer while the driver is still seated (eyes that are bloodshot, an odor of alcohol from the breath, slurred speech, difficulty locating insurance card, drivers’ license and registration) and the vehicle exit process, including any stumbling, staggering or balance difficulty.

The police also employ specific “divided activity” tests known as the Standardized Field Sobriety Tests (SFST). This sequence of activities, which includes the HGN, the walk and turn and the one legged stand, requires the subject to perform multiple tasks simultaneously. For instance, during the one legged stand, the test taker must hold his leg off the ground six inches, while also looking at the elevated foot and counting from 1 to 30.

The driver will then be asked to submit to a Preliminary Breath Test (PBT). The PBT is a device that is not certified for accuracy the Illinois State Police or subject to any legally recognized regulations. After a user blows into a tube, the PBT device generates a number that estimates the driver’s blood alcohol level (BAL).

The results of the PBT are not admissible in the DUI prosecution itself as evidence of the driver’s BAL. However the arresting officer is authorized to use a BAL of .08 or greater on the PBT in reaching an arrest determination. 625 ILCS 5/11-501.5
After gathering all this information, the officer arrests you for DUI, following which you will be asked to submit to another type of test, either blood or breath, to determine your BAL. These results are gathered using a more precise method and unlike the PBT results, they can be used in the DUI case to prove your BAL. In addition, if you elect not to submit to these tests, your “refusal” can be disclosed to the jury as evidence of a “guilty mind”. People v. Rose, 268 Ill. App. 3d 174, 178, 643 N.E.2d 865, 868 (1994)

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Published on: August 2, 2013

Why cooperating with the police during a DUI arrest may not be a good idea

By Theodore Harvatin

If you are suspected of Driving Under the Influence (DUI) in Illinois, you have decisions to make. If you have been drinking and or are nervous, you may not make the wisest decisions.

This is an important time because DUI has two different consequences, although they are, somewhat confusingly, related. DUI is a crime that even for a first offense with no aggravating circumstances, is a Class-A misdemeanor, just one step below a felony charge. It is a crime because you can be sent to jail for up to 364 days and you can be fined up to $2,500.00 (625 ILCS 5/11-500)

There is another part to a DUI arrest, which involves not only efforts by the police to gather evidence against you to convict you of DUI but also to get you off the road temporarily while the DUI case is going on in court. The evidence gathering comes in three general forms.

First of all, the police officer, just like any other person, can observe behaviors that suggest intoxication. You will see these described in the police reports as bloodshot, glassy eyes, slurred speech, unsure walking, poor balance, difficult following directions (such as retrieving your driver’s license, registration and insurance card) and other things we all notice about someone whom we suspect is intoxicated.

The officer will additionally have the benefit, in many cases. of observing your driving behavior. The National Highway Traffic Safety Administration (NHTSA) has developed a list of driving-related actions that are indicative of alcohol impairment. The most common is a wide turn.

The police also use specific NHTSA-approved tests that they will testify help determine if your BAC level is .08, which in Illinois is the legal limit. These tests are known as the Standardized Field Sobriety Tests (SFST). There are three of them.

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Published on: July 26, 2013

CDL Disqualifications due to Illinois DUI arrests

By Theodore Harvatin

Regardless of the situation, an arrest for Driving Under the Influence (DUI) in Illinois must be treated seriously. Illinois DUI law provides that even a “plain vanilla” (no accident, valid driver’s license, insurance in place, not in a school zone, no other aggravating factors) DUI is a crime that is punishable by jail time of as much as 364 days and a fine that can reach $2,500.00. (625 ILCS 5/11-500)

Furthermore, a DUI arrest carries with it driver’s license consequences. A conviction means an automatic revocation of your driver’s license. (625 ILCS 5/6-205)

When your driver’s license is revoked, before you can obtain full restoration of driving privileges, you must submit yourself to an administrative hearing with the Illinois Secretary of State. In that hearing, you are required to prove that you can be a safe and responsible driver.

At a minimum, you must provide the Secretary of State with a Uniform Drug and Alcohol Evaluation. If the Uniform evaluation is more than six months’ old at the time of your hearing, you must also provide the Secretary of State with an updated evaluation on a form that his office has developed for that purpose. All those documents must be completed by an agency licensed by the Division of Alcohol and Substance Abuse (DASA).

The agency that conducts the evaluation will, using DASA guidelines, determine what treatment or other intervention will be necessary for moving forward with your administrative hearing. The DASA guidelines provide for certain minimum classes following a DUI offense.

If this is the first time you have ever been arrested for DUI, in Illinois or any other state, and if you took a breath or blood test and your blood alcohol level (BAL) was .15 or less and you have no abuse or dependency symptoms, your classification would be minimum risk. As such, you would be required to complete a 10-hour course known as Driver Risk Education (DRE).

It is rare that a minimal risk individual is required to have a hearing with the Secretary of State. In most situations, a minimal risk offender would be granted court supervision.

This disposition does not result in a conviction. (730 ILCS 5/5-6-3.1(f)) As such, that person avoids a driver’s license revocation.

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Published on: July 19, 2013

Illinois DUI arrests and suspensions on private property

By Theodore Harvatin

Most drivers recognize that it is illegal, in all 50 states, to commit the offense of Driving Under the Influence, commonly referred to as DUI. 625 ILCS 5/11-501 This offense occurs when there is specific evidence of impaired driving caused by alcohol. However, it can also apply if there is proof that the driver had a blood alcohol concentration (BAC) of 8% alcohol per 210 liters of breath or 8% alcohol per 100 milliliters of blood. 625 ILCS 5/11-501.2

DUI is a crime because if the state can prove the driver guilty beyond a reasonable doubt, the driver faces a fine of up to $2,500 and up to 364 days in jail upon being convicted of a first offense in which there are no aggravating factors. Furthermore, a conviction will lead to an automatic termination of the offender’s driver’s license and driving privileges. Those privileges, once revoked, can only be restored through a driver’s license hearing with the Illinois Secretary of State.

There are waiting periods before a driver can apply for restoration of full driving privileges. The waiting periods are longer the more DUI and driving while revoked or suspended offenses the driver has on his or her record and are also lengthened if the driver is offered a breath or blood test and declines to take it.

In some circumstances, the driver may apply for a Restricted Driving Permit (RDP) while the revocation is in effect. If the driver has not had a DUI charge in the previous five years, he or she may apply to the Secretary of State for an RDP thirty days after the revocation begins, unless the driver is under 21 or unless this is the second conviction for DUI. In either of those cases, there is a one-year waiting period.

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Published on: July 12, 2013

Kane County failed to report thousands of DUI dispostions

By Theodore Harvatin

In Illinois, the clerk of the circuit court serves, for the most part, as the record keeper for the judges. The circuit clerk should not be confused with the county clerk, who maintains, among other things, voting records, birth and death certificate and other personal information.

As far as an Illinois DUI is concerned, a critical function of the circuit clerks is to report DUI convictions to the Illinois Secretary of State. 625 ILCS 5/6-204 Once the Secretary of State is notified of a DUI outcome, his job is to record it to the driver’s Illinois driving record, which is known as a driving “abstract”.

At this point, one caveat is appropriate. The clerk does not report dismissed tickets to the Secretary of State. So if for instance you are charged with speeding and you successfully contest the ticket, either by being found not guilty or persuading the judge to dismiss the charge without a trial, the Secretary of State would have no record of your ever being charged.

The situation can be different with a DUI charge. That’s because when you are arrested for possible DUI, there are two tracks to the case.

You will be charged with DUI, which is a criminal offense, meaning that you can be sent to jail and or be fined. The lowest level of DUI charge can result in a fine of up to $2,500 or 364 days in the county jail, or both.

If the DUI charge is dismissed, the fact you were charged will not show up on your abstract. However, when you are arrested for DUI, you may also incur a driver’ license suspension in connection with the outcome of the request by the police officer that you submit to a chemical test, either of your breath or blood. 625 ILCS 5/11-501.2
If there is a test and the results are at least .08 or if you are asked to test and refuse, your license will be suspended for a period of time that ranges from 6 months to 3 years. This suspension is called a “statutory summary suspension” or SSS.

The SSS is automatic unless you obtain a court order that rescinds (removes) it from your record. Absent this rescission, the SSS stays in effect even if the DUI is thrown out.

That is due to the fact that the SSS is an administrative sanction (it only impairs your license, not your money or freedom and it’s only temporary) so the state does not have to prove you guilty of the DUI. The mere fact you had a .08 or higher or refused to blow is all they need.

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