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At one time, an arrest for Driving Under the Influence (DUI) was not that big of a deal. Many such charges were reduced to reckless driving so that the driver did not lose his or her driver’s license.

Even when a DUI conviction did occur, there was normally a small fine and after a short period of time, the driver was allowed to drive again. In addition, breath tests were optional and there was no downside in not agreeing to take a test.

The legal blood alcohol level (BAL) was high. Finally, even if a breath test existed, the state was still required to prove you were intoxicated at the time you were driving the car.

Today, the consequences of a DUI arrest, much less a conviction, are more serious. The police have developed more sophisticated investigative tools, such as the Horizontal Gaze Nystagumus (HGN), the walk-and-turn and the one-legged stand.

These are tests that, law enforcement alleges, are designed to determine whether your ability to perform physical tasks required to drive are impaired by alcohol. Results of your performance on these tests are often recorded on video cameras affixed to police cruiser dashboards.

These recordings are admissible in court. Furthermore, Illinois law allows police to ask you to provide a breath sample into a Preliminary Breath Test (PBT) in order to help in establishing whether there is probable cause to believe you may be under the influence of alcohol.

While PBT results are admissible to help the state establish that the police officer had a basis to believe you might be under the influence, the results themselves cannot be used to establish actual guilt. People v. Rose, 268 Ill. App. 3d 174, 205 Ill. Dec. 574, 643 N.E.2d 865 (4 Dist. 1994) Moreover, the accused is entitled to refuse to take the PBT and there is no penalty for doing so. 625 ILCS 5/11-501.5

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On a daily basis, we read and hear about arrests for Driving Under the Influence (DUI). After an arrest occurs, the case follows two tracks.

The first track has to do with the driver’s license suspension from a DUI arrest. In connection with a DUI arrest, you will be asked to submit to a portable breath test (PBT).

The results of a PBT cannot be used in court as direct evidence of your blood alcohol content (BAL), or in other words, whether you have enough alcohol in your body to be over the legal limit of .08. 625 ILCS 5/11-501.5 However, the officer may rely upon the PBT results, along with standardized field sobriety tests and other physical characteristics (bloodshot eyes, odor of alcohol, slurred speech, weaving and others) to determine if there is probable cause to believe you should be arrested for DUI.

Once the officer, relying upon the above factors, believes there is probable cause, you will be placed under arrest for DUI. After that you will be asked to submit to a “chemical test”, either a blood draw or by the use of a machine that is purportedly certified for accuracy and administered by someone with training in doing so. Consequently, those results are admissible in court to prove your BAL. 625 ILCS 5/11-501.2

A BAL of .08 or greater will result in a driver’s license suspension for a specific period of time, unless you are able to prosecute a rescission of the statutory summary suspension. You also have the right to refuse testing unless there is an accident with serious injury or unless you are taken to the hospital for medical treatment.

The length of the summary suspension depends upon two factors, those being whether you agreed to the test and whether it has been greater or fewer than five years since you received a previous DUI (if any). If you have had a DUI within the previous five years and you register .08 or higher, your suspension will last for one year. If you do not submit to a chemical test, you will be suspended for three years. You cannot drive for any reason, even on a restricted basis, during the suspension.

If this is your first DUI or if the most recent prior DUI happened more five years ago, then a refusal will result in a one year suspension and a test of .08 or higher will lead to a six month suspension. After the first thirty days of the suspension, you would be eligible for a Monitoring Device Driving Permit (MDDP).

The second prong of a DUI arrest involves the crime of DUI. It is a crime because if you are convicted, you are subject to fines and or jail time.

Before the government can take away your property or liberty, they must prove, beyond a reasonable doubt, that you committed the crime of which you are accused. Thus, unlike the driver’s license suspension, which is automatic, the state must prove certain things before you can be convicted of DUI.

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The Illinois Secretary of State is required to revoke the driver’s license of anyone who is guilty of committing the offense of Driving Under the Influence (DUI) while operating a motor vehicle in this state. Moreover, even if you do not live in Illinois or have an Illinois driver’s license, the Secretary of State will revoke your driving privileges after a DUI conviction, meaning you may not drive in Illinois even if you have a valid driver’s license issued by another state. 625 ILCS 5/6-205

Furthermore, your driver’s license and driving privileges will be revoked if the Secretary of State receives a report of a conviction stemming from a DUI offense committed in another state, if at the time of the offense, you were a resident of Illinois or held an Illinois driver’s license. Most states have agreed, via the Interstate Driver’s License Compact, to report convictions to Illinois, and even states that are not Compact Members may report those convictions voluntarily.

Illinois has an interest in making certain that those who live in, drive in or hold a license issued by, Illinois do not endanger the health and safety of its citizens by driving drunk. To revoke their right to drive in Illinois makes sense.

But even someone who now lives in another state and whose privileges Illinois revoked under any of the above circumstances-DUI in Illinois or DUI in another State while having an Illinois license or being an Illinois resident-and who has no interest in ever driving in Illinois or having an Illinois driver’s license may still be required to clear the Illinois revocation, or “lift the hold”.

The reasons for this are two-fold. First, the Compact stipulates that one state may not issue a driver’s license to someone who is revoked in another state until at least one year has passed since the revocation occurred. 625 ILCS 5/1-117 But there are also U.S. Department of Transportation requirements that prohibit one state from issuing or renewing a driver’s license to its own residents if the applicant has a hold from another state due to a DUI offense.

It does not matter how long ago the revocation on your Illinois driver’s license occurred. Nor is it relevant that you did everything your new state required of you, or that you completed all the requirements of the court that processed the DUI that led to your Illinois revocation There are no double jeopardy or statute of limitations defenses.

You cannot always rely upon your DMV driving records to determine your status. Illinois may find other DUI offenses that were expunged from your record. You are still required to deal with them.

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Josh Brent, a professional football player for the Dallas Cowboys, was charged with Driving Under the Influence, also known as DUI, DWI or drunk driving. He was involved in accident that resulted in the death of his passenger and teammate, Jerry Brown.

Both men played college football at the University of Illinois, which is located in Urbana-Champaign. During his college career, Brent was arrested for an Illinois DUI.

If at the time of his DUI arrest Brent was under the age of 21, it is unlikely he would have received a disposition known as court supervision, as Champaign County judges rarely approve of that disposition. Illinois law mandates that anyone convicted of DUI shall have his license revoked. 625 ILCS 5/6-205. How long the revocation will be in effect depends upon his previous record of DUI offenses.

If there has been a single prior revocation over the past 20 years, the second DUI conviction would result in a revocation for five years. If the prior revocation occurred more than 20 years ago, a second conviction would cause a revocation of just one year. Regardless of the time frame, one convicted of DUI for a third time would be revoked for ten years. 625 ILCS 5/6-208

The rules for a fourth or later conviction are trickier. If the fourth conviction occurred as a result of a DUI arrest that was made before January 1, 1999, the revocation would run for ten years. However, if the arrest occurred after January 1, 1999, the revocation would be permanent, meaning that Illinois would not allow the driver to ever receive a license. 92 Illinois Administrative Code §1001.420(o), 625 ILCS 5/6-208(b)4; 625 ILCS 5/6-205(c)(1).

Nor can such a person apply even for a Restricted Driving Permit (RDP). 6-206(c)3 The idea is, the offender may never drive again in Illinois.

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A charge of Driving Under the Influence (DUI or drunk driving) is considered an offense against the people of the state of Illinois. In other words, it is a crime. 625 ILCS 5/11-501

A person charged with a crime must respond to the charges in a court of law. Because the consequences of a DUI conviction include fines and even possible incarceration (jail) (730 ILCS 5/5-4.5-5.5), in the United States, the accused does not have to prove his innocence. Rather, the state has the burden of proving the accused guilty beyond a reasonable doubt.

The defendant is also entitled to a trial by jury, to review, in advance, the evidence the state intends to present against him, and the right to appeal any conviction. You cannot be forced to testify, and if you are found not guilty, the state may not try you again (double jeopardy) Finally, the accused is afforded certain Constitutional protections against violations of his rights, primarily under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

As a result of these protections, especially the requirement that the accused is not required to prove anything, it is to a DUI defendant’s benefit to downplay any actions that might reflect negatively upon him. In other words, “prove it” is a necessary and appropriate response.

Another consequence of a DUI arrest is an Illinois driver’s license suspension. If the arrest leads to a conviction, your driver’s license would be revoked.

The main difference between a suspension and a revocation stems from the fact that after being revoked you must go back and ask the Secretary of State to return your driver’s license to you. If you are only suspended, your license will be returned to you without needing a hearing.

When it comes to the driver’s license hearing, it’s an entirely different ballgame. You have already been proven guilty beyond a reasonable doubt.

Therefore, your conviction is assumed to be valid and to attend a hearing and claim you were not guilty of the DU is a losing strategy. That’s because you, as the applicant, carry the burden of proof. 92 Illinois Administrative Code §1001.430 a) The standard is clear and convincing evidence. 92 IAC §1001.400

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Illinois has a reckless homicide law. 720 ILCS 5/9-3 In its simplest terms, reckless homicide involves doing something grossly dangerous and stupid that causes the death of another person, even if unintended. A classic case would be randomly firing a gun into a crowd.

The reckless homicide law formerly provided that “in cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary” In other words, if you were driving drunk and someone died in a crash, you were assumed to be guilty of reckless homicide.

A criminal offense is broken down into what are known as “elements’ of the crime. “Elements” means that if facts A and B are proven, the defendant is guilty of C.

The state has the burden of proving, beyond a reasonable doubt, each element of the crime. The problem with the reckless homicide law as pertains to drunk driving is that it required the defendant (the accused) to disprove one of the elements, namely, that his conduct was reckless. This improperly shifted the burden of proof to the defendant and is unconstitutional. People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003)

In response to this, the DUI law was changed. Today, there are various offenses that fall under the category of “aggravated DUI”. 625 ILCS 11-501(d) Aggravated DUI is always a felony and in some circumstances, the penalties for that offense are enhanced beyond the maximums that would otherwise apply.

Thus, a driver is guilty of aggravated DUI if, in committing the offense of DUI (Driving Under the Influence), the driver was involved in an accident that resulted in the death of another person, so long as the act of driving under the influence was the “proximate cause” of the death. The prosecutor is required to prove that the act of driving under the influence caused the death, which renders the law constitutional. People v. Winningham, 391 Ill.App.3d 476 (4th Dist. 2009)

Another aggravated DUI circumstance arises if the driver committed DUI and had been previously convicted of reckless homicide in the operation of a motor vehicle. 625 ILCS 5/11-501(d) A person in that situation is guilty of a felony.

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Illinois, as is the case with most states and the federal government, makes it illegal to possess marijuana. A few states recognize medicinal marijuana, which can be used with a prescription.

A couple of states recently decriminalized (made legal) marijuana use. A topic for another time is how those states will square their laws with the fact that marijuana possession remains a federal offense should the Federal Government choose to press charges.

That aside, driving under the influence (DUI) is illegal in all 50 states, including Illinois. 625 ILCS 5/11-501 While the term used is “driving” under the influence, the specific law makes it illegal, while “under the influence”, to drive or to be in “actual physical control” of a “vehicle” anywhere within the State of Illinois.

A “vehicle” includes any device upon which property or person may be transported, excluding human-powered devices. 625 ILCS 5/1-217 Therefore, it is not illegal to operate a bicycle while under the influence. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV is, however, covered, even though you are not required to have a driver’s license or license plate to operate one.

“Under the influence” does not require the State to prove you were “drunk, intoxicated, buzzed” etc. Rather, 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 In essence, you may convicted of DUI based upon nothing beyond proof that alcohol reduced your ability to think and act normally.

You may also be convicted of DUI in a way that does not require proof of actual impairment. If the state can show through chemical testing that your blood alcohol level at the time you were driving or in actual physical control of a vehicle was .08 or higher, you are just as guilty as though the State had proven your ability to drive was impaired due to alcohol.

In these blood-alcohol level type of cases, the defense must attempt to attack the manner in which the test was administered or assail its general reliability to prove accurate results, or otherwise show a judge or jury that the police engaged in other irregularities that tainted the evidence or that violated your Constitutional rights. While evidence of your apparent intoxicated or sober state are not required in this type of prosecution, such evidence can either support or erode the jury’s confidence in the chemical test results that the state proffers as proof of your being .08 or above.

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In the State of Illinois, the General Assembly is the legislative body that makes laws. The General Assembly consists of a Senate whose members number 59 and a House of Representatives made up of 118 members.

At various points throughout the legislative session, the members introduce proposed laws, which are known as “bills”. They are not effective as laws until they pass various levels of review, such as committees set up by each body.

Every state requires its drivers, subject to narrow exceptions, to obtain a valid driver’s license. 625 ILCS 5/6-101 There are of course age and residency requirements. Furthermore, an applicant for a driver’s must provide proper identification.

Those who are unable to provide such identity papers often include undocumented immigrants. If they are arrested and charged with Driving Under the Influence (DUI), they may be convicted of a felony. 625 ILCS 11-501(d)(1)(H) for receiving a DUI at a time they did not hold a valid driver’s license. This is known as aggravated DUI.

In addition to the felony angle and even if the prosecutor decides not to pursue a felony conviction, there are unfavorable driver’s license consequences that flow from a conviction for driving without a valid license. A new suspension is added to your record. Furthermore, the length of the original suspension is doubled. 625 ILCS 5/6-303
At some point, repeated convictions for driving suspended will cause the Secretary of State to revoke your license. Once your license is revoked, you must have a Secretary of State driver’s license hearing. Meanwhile, another year gets added to the revocation.

But for someone who cannot provide identity documentation, such a hearing is futile. Therefore, those persons wind up in a vicious circle of what some have termed repeated but necessary criminal conduct (driving without a license, driving revoked etc in order to support your family).

Two Illinois lawmakers have introduced a bill, House Bill 6228. This bill generally provides an avenue for individuals to obtain a “driver’s certificate”. The certificate allows the holder to operate a motor vehicle in Illinois and subjects him to all the traffic laws and rules, just as is the case with any other driver.

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In Illinois, a conviction for Driving Under the Influence (DUI) requires the Illinois Secretary of State to revoke your driver’s license. When your license is revoked, the Secretary of State takes away your physical driver’s license and also cancels your right to operate a motor vehicle on the public roadways of Illinois. 625 ILCS 5/6-205
Therefore, even if you have a license in your possession, whether one issued by Illinois or any other state, you are not entitled to drive in Illinois. Because of your revoked status, you must apply to the Secretary of State for a new license by going through the driver’s license reinstatement process.

There is a waiting period before you are allowed to make application for the license. Keeping in mind that supervision is not a conviction, a first conviction carries with it a waiting period of one year.

A second conviction within 20 years of the first one results in a 5-year wait. You will have to wait 10 years following a third conviction. Your wait will be forever if you have 4 convictions, any one of which results from an arrest that occurred after January 1, 1999. 625 ILCS 5/6-208
Unless you are in the fourth arrest situation, you may be entitled to apply for a restricted driving permit (RDP) during the waiting period. The rules on how soon you may apply for an RDP are somewhat complex, but the time period will range anywhere from as few as 30 days to as many as 3 years. For the most part, two factors control, the first being how much time has elapsed between your DUI offenses and the second being whether or not you submit to a blood or breath test at the time of your most recent offense.

Whether you are applying for reinstatement or an RDP, any relief after a DUI revocation requires that Secretary of State driver’s license hearing. In that connection, there are many issues to negotiate.

These include determining the type of hearing (formal or informal), where to obtain a drug and alcohol evaluation, the types of classes to take, the number of hours to complete, the support program, if any, the length of abstinence required, if any, and the paperwork to submit in order to show the Secretary of State that you have done, and are doing, what is required of you. After getting all of these materials together, you then must present your case at an administrative hearing.

Some have devised strategies that they think will get around all of the above. One is to drive anyway. A sufficient number of convictions for driving revoked will eventually grow into a felony, with mandatory minimum prison terms and no probation. In addition, each conviction adds another year to the revocation. 625 ILCS 5/6-303

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There are approximately 40,000 Illinois DUI arrests each year. And that is just one state.

Over the course of an entire year, in the nation as a whole, there must be hundreds of thousands of such arrests. In fact, we personally represent many Illinois residents who have been convicted of a DUI while driving in another state and who, because of the conviction, lose their Illinois driving privileges, as provided for by law. 625 ILCS 5/6-206(a)(6) and 6-203.1
Yet whenever a well-known or prominent individual receives a favorable DUI outcome, a segment of the population, despite not knowing all the facts, cries “foul”! Many do not appreciate the fact that while there may be a rare number of cases in which “the fix is in”, the more probable explanation in the vast majority of dismissals is that the person had effective legal representation, coupled with factual and or legal deficiencies in the prosecutor’s case that the attorney was able to exploit.

If celebrity and clout were the ticket to getting away with DUI, the likes of Lindsey Lohan, Mel Gibson and Bobby Brown would not have been convicted. A recent situation in Washington State is instructive.

A judge was arrested for DUI. One thing to mention is that county prosecutor, whose office appears before the judge, removed himself from the case to avoid potential conflicts of interest. An outside lawyer who does not have contact with this judge’s court system, reviewed the evidence. Based upon that remove, he submitted a written report explaining in detail why he declined to prosecute the judge.

One means of attacking a DUI arrest is that the officer had no reasonable basis to initiate the stop. Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968) In that regard, the police were on solid grounds. The officer observed the vehicle weaving for a substantial distance, the driver failed to signal lane changes and the vehicle was traveling well above the posted speed limit. All of these constitute traffic code violations. Even if the driver in fact was not guilty beyond a reasonable doubt of committing these offenses, the arresting officer had a reasonable basis to believe the driver had violated the law.

The next step in the process is to determine whether the officer could escalate a simple traffic stop into a DUI offense? The police cannot pull you over for a traffic ticket and then immediately start investigating you for DUI.

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We have provided effective advice and assistance to thousands of clients facing driver's license suspensions and revocations, both in Illinois and out-of-state, including students from area colleges and universities.

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