Illinois DUI Lawyer Blawg

Published on: November 2, 2012

What is the difference in Illinois between a suspended and revoked driver’s license?

Suppose you are arrested for Driving Under the Influence (DUI) in Illinois. Such an arrest typically involves a criminal charge.

If you are convicted, you face the possibility of being fined, sentenced to probation or jail, ordered to attend alcohol classes and a MADD panel, required to wear an ankle bracelet and subjected to other punishments that can arise from a criminal case. DUI is a Class-A misdemeanor, which is a crime. 625 ILCS 5/111-501
There is also a noncriminal aspect to the DUI arrest, namely, negative action taken against your driver’s license. This is known as an “administrative sanction”.

A driver’s license suspension or revocation may seem like punishment, but a driver’s license is a privilege and not a right and furthermore, administrative sanctions do not include jail or fines. Therefore, taking away your driver’s license is not considered criminal in nature.

You may experience driver’s license sanctions arising from a DUI arrest that include a suspension or a revocation or both. A suspension creates a temporary hold on your right to drive for a specific period of time. After that time period ends, your suspension is over once you pay a reinstatement fee. 625 ILCS 5/1-204
A driver’s license revocation is also for a given period of time. But unlike a suspension, a revocation ends your right to drive, rather than just putting it on hold.

After the revocation time is over, your right to drive is not restored automatically. You must request driving privileges by having a driver’s license hearing with the Illinois Secretary of State. 625 ILCS 5/1-176
A successful driver’s license hearing requires that you provide a drug and alcohol evaluation, complete classes and if your classification is high risk dependent (alcoholics) stop drinking for at least 12 months and develop a support program, either Alcoholics Anonymous or a nontraditional program. There may be a fee for the hearing. Even if you win, you may be required to install, at your expense, a Breath Alcohol Interlock Ignition Device (BAIID). Finally, you will be required to pay a reinstatement fee.

Fees, evaluations, classes, breath machines etc. may sound like punishment. They are not considered punishment because the law does not force you to apply for your driver’s license.

A suspension arises from a DUI arrest based upon what happens when the police ask you to take a chemical test (breath or blood) during the arrest. If you register at least .08 on the chemical test or refuse to take it, the Secretary of State will suspend your driver’s license for anywhere from 6 months to 3 years. If you have gone more than 5 years without a DUI, the suspension is 6 months if you take the test and 12 months if you do not. You can apply for a driving permit during all but the first 30 days of the suspension. This is known as a Monitoring Device Driving Permit (MDDP) . 625 ILCS 5/6-208.1

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Published on: October 25, 2012

What might happen to Carlton Fisk?

By Theodore Harvatin

Carlton Fisk was one of the great major league baseball catchers to ever suit up. He played for the Boston Red Sox from 1969 to 1980 and for the Chicago White Sox until he retired in 1993.

In the 1975 World Series, cameras caught Fisk in probably the most iconic moment ever captured live in sports history, as he “English-ed’ his home run ball fair in the early morning hours of Game 6 of the 1975 World Series at Boston. Cameras then captured him jumping for joy, earning NBC an Emmy award.

Fisk has now been arrested in Illinois for a DUI. Early news reports indicate Fisk was passed out in a cornfield near New Lennox, seated in his truck, engine running, tire flat.

Police found an open vodka bottle in the passenger seat. Police charged Fisk with illegal transportation of alcohol (the open vodka bottle), contrary to 625 ILCS 5/11-502, as well as for Driving Under the Influence of Alcohol (DUI) and improper lane usage (“weaving”).

After police awakened him, Fisk agreed to go to the hospital. However, once at the hospital, Fisk would not submit to a blood draw at the officer’s request.

In DUI cases involving an accident with injuries, there are typically two blood draws involved. When a person is transported to the hospital, the emergency room will normally draw blood in the normal course of treatment. This draw is important to the medical personnel treating the patient, as information about the contents and quantify of substances in a person’s blood stream is important in determining the diagnosis and treatment of any injuries
This draw is known as the “medical draw” because the blood is drawn for purposes of treatment. The results of the medical draw are admissible in a prosecution for DUI. 625 ILCS 5/11-501.4.

Such information can be used to prove actual impairment (drunk driving). The law presumes that someone with a blood alcohol level (BAL) of .08 or higher is under the influence, presumes that a BAL of .05 or less is evidence you are not impaired and creates no presumption when a BAL is greater than .05 but less than .08. Presumptions can be overcome with contrary evidence but the party with a favorable presumption has a leg up. 625 ILCS 5/11-501.2
The medical draw may also be used to demonstrate that the accused either was or was not guilty of a “per se” violation of the DUI law. Under the “per se” analysis, the state does not have to prove that the defendant was actually impaired. The mere act of driving with a BAL of .08 or above is, in and of itself, illegally, even though there may be absolutely no evidence of impairment, such as unsteady balance, blood shot eyes, a strong odor of alcohol and bad driving indicative of impairment, such as weaving. 625 ILCS 5/11-501(a)(1)

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Published on: October 19, 2012

Is there a statute of limitations for an old DUI?

By Theodore Harvatin

Someone who is arrested for Driving Under the Influence (DUI) may have questions about how long the DUI can be used against him. This issue can arise in several contexts but should not be confused with similar but different situations.

A statute of limitations as a defense to a DUI charge is limited to one specific situation. The state (police and or prosecutor) must, in charging any criminal offense, including DUI, allege in a written instrument the date of the claimed offense.

The charging instrument may be in the form of a traffic ticket (known as a complaint) issued by a police officer. The state may alternatively make the charge by bringing an “information”, a document filed by or on behalf of the state’s attorney. Or the charge may come through a grand jury indictment.

In all cases, the charge must be filed with the circuit clerk within a limited period of time after the incident date alleged in the information, indictment or complaint. For a misdemeanor DUI, that time period, which is known at the statute of limitations, is 18 moths. For a felony, it is 3 years. 720 ILCS 5/3-5
If a charge is filed within the above time frames, the statute of limitations is no longer a defense available to the accused (defendant). There may or may not be other defenses but not the statute of limitations.

Perhaps a charge is filed against you but takes a long time to resolve. Here the applicable time limit is the speedy trial act. 725 ILCS 5/103-5 In Illinois state court, if you are in custody (jail) and file a proper speedy trial demand, you must be brought to trial within 120 days. If you are not in custody, the state has 160 days to bring you to trial.

The tricky part of what seems like simple math is that any delay in bringing the defendant to trial that is attributable to the defendant does not count. So if you fail to show up for your trial date and the case is set to a later date, that delay does not count towards the speedy trial time. Or if you or your lawyer requests a continuance, or if you and the state agree to continue the case, the delay counts against you, not the state.

If the state requires a continuance, the delay counts in your favor, although if the state can present good cause for the delay (such as a witness that suddenly becomes unavailable), the judge may give additional time. People v. Exson, 896 N.E.2d 844, 384 Ill. App.3d 794 (1st Dist. 2008) A delay that works against the state is if the court system is not prepared, such as no available judges or jurors or courtrooms.

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Published on: October 12, 2012

If I lose my driver’s license, do I have to stop drinking and going to AA meetings to get the license back?

By Theodore Harvatin

One of the most devastating consequences of an Illinois conviction for Driving Under the Influence (DUI) is the loss of driving privileges that follows. By law, the Illinois Secretary of State is required to revoke your drivers’ license if you are convicted of DUI. 625 ILCS 5/6-205(a)(2) This can have an impact upon your job, your family and your self-esteem.

The revocation will be for at least one year. 625 ILCS 5/6-208(a) A one-year revocation applies if no other DUI convictions appear on your Illinois driving record.

If there is another DUI conviction within the previous 20 years, the new conviction will result in a revocation for 5 years. A third conviction, regardless of the time between offenses, results in a revocation for 10 years.

Four convictions will lead to a lifetime ban on any driving relief, even a restricted driving permit (hardship license) if any DUI arrest that led to a fourth (or greater) conviction occurred after January 1, 1999. 92 Illinois Administrative Code §§1001.420(o), 625 ILCS 5/6-208(b)4., 625 ILCS 5/6-205(c)(1), 6-206(c)3
Court supervision for DUI is not a conviction and will not be a factor in the above equations. Nor will DUI convictions that occurred in any other state, unless the state where the conviction occurred reported it to Illinois, unless it is your fourth or greater offense. Girard v. White, 356 Ill. App. 3d 11, 292 Ill. Dec. 376, 826 N.E.2d 517, (1 Dist. 2005)

A suspension and a revocation are not the same thing. A suspension is a temporary withdrawal of your driving privileges. Your license continues to exist; you just cannot use it during the suspension. However, once the suspension is over and you pay the reinstatement fee, you are allowed to drive, provided your license is otherwise valid.

In connection with DUI offenses, a suspension comes into play as a consequence of your either taking a chemical test (breath or blood) to determine your blood alcohol content (BAC) and registering a BAC at or above the legal limit of .08. Your license is also subject to a suspension if you decide not to take the chemical test.

The suspension is always longer if you do not test. The suspension is always longer if you have had a DUI in the previous five years (non first offender)

When the Secretary of State revokes your driver’s license, your privilege to drive ceases to exist. Restoration of those privileges is not, unlike a suspension, automatic. You must apply, after the revocation period of 1, 5 or 10 years ends, for driving privileges through an administrative hearing with the Secretary of State.

There is a common misconception that in order to obtain driving relief following a DUI revocation, you must stop drinking for at least a year and attend Alcoholics Anonymous (AA) meetings. This is true in some instances but not universally so.

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Published on: October 5, 2012

Is there any point at which Illinois will never give you a driver’s license?

By Theodore Harvatin

The State of New York recently passed a law that if you have five (or more ) convictions for Driving Under the Influence (DUI), you may never again obtain a driver’s license. Under this law, if a revoked driver applies for reinstatement, the DMV will check the applicant’s driving record and automatically deny the application if the record shows five or more DUI convictions.

Illinois a has a provision that imposes a lifetime ban on any type of driving relief, even a restricted driving permit (RDP), if an applicant has four or more DUI convictions. 625 ILCS 5/6-208(b)(4) However, under Secretary of State administrative rules, at least one of the convictions must have arisen from a DUI arrest that occurred on or after January 1, 1999. 92 Illinois Administrative Code §1001.420(o).

In determining whether you fit under the “four-and-out” rule, there are a few things to keep in mind. First, as indicated, someone with four or more convictions remains eligible to apply for a license if all the arrests were before January 1, 1999.

Another requirement is that there be four or more “convictions”. A disposition of court supervision does not count as a conviction. 730 ILCS 5/5-6-3.1(f); Kirwan v. Welch, 133 Ill. 2d 163, 139 Ill. Dec. 836, 549 N.E.2d 348 (1989) Nor does a reckless driving conviction count, even if you were originally charged with DUI.

The number of DUI convictions that you have on your Illinois driving record determines whether you will be revoked for one year (one conviction), five years (two convictions within 20 years) or 10 years (three convictions). Most states, under the Interstate Driver’s License Compact (Compact), are supposed to report to Illinois any DUI convictions that a driver who holds an Illinois license receives in the state of arrest and conviction. However, this reporting often does not happen, although the failure to report seems to be occurring less frequently in more recent times than it did in the past.

In calculating how long you will be revoked following a DUI conviction, Illinois only takes into account the arrests that the other states report to Illinois, unless the total of convictions is four or more. In the four or more situation, Illinois must include all out-of-state convictions, even those that were not directly reported to Illinois. Girard v. White, 356 Ill. App. 3d 11, 292 Ill. Dec. 376, 826 N.E.2d 517, (1 Dist. 2005) Illinois finds out about these non reported DUI offenses by reviewing a nationwide database through a process known as Problem Driver Pointer System (PDPS).

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Published on: September 28, 2012

When can blood tests be used against me in an Illinois DUI prosecution?

By Theodore Harvatin

In an Illinois arrest for DUI (Driving under the Influence), law enforcement is entitled to ask you to take a breath or blood test to determine your blood alcohol contents (BAC). 625 ILCS 5/11-501.2 The officer, not the motorist, is entitled to determine which test to offer. Refusing one type of test is considered a refusal of all tests. People v. Kaegebein, 137 Ill. App. 3d 837, 92 Ill. Dec. 656, 485 N.E.2d 467 (2 Dist. 1985); People v. Shaffer, 261 Ill. App. 3d 304, 199 Ill. Dec. 431, 634 N.E.2d 31 (3 Dist. 1994).

A breath or blood test is known as a “chemical test”. Another test the police are entitled to ask you to take is the preliminary breath test screening (PBT). 625 ILCS 5/11-501.5
Before a police officer can initiate a DUI arrest in Illinois, he must have probable cause to believe you have operated a motor vehicle while under the influence of alcohol. The officer may base his probable cause on general observations such as an odor of alcohol, bloodshot eyes, slurred speech and difficulty locating identification documents and insurance information.

The officer may also employ standardized field sobriety tests, typically the horizontal gaze nystagmus, the walk-and-turn and the one-legged stand. The officer may also use the PBT to help establish probable cause. However, because the PBT is not a certified breath test instrument, the results cannot be used in a DUI prosecution. 625 ILCS 5/11-501.5
A blood test can be used in two different ways. It may be the basis for imposing a driver’s license suspension. The blood test may also be used as tool to convict of DUI, which is the criminal case.

On the 46th day after you submit to a chemical test that shows a BAC of .08 or more, your driver’s license is subject to a suspension for a period of 6 months if you have not had a DUI arrest in the previous 5 years and 12 months if you have. Upon refusing to take a test, you face a suspension of one year, or three years if it’s been fewer than five years since your prior offense.

A suspension is a temporary invalidation of your driver’s license. When the suspension ends, your license becomes valid again, unless it is invalid for some other reason.

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Published on: September 21, 2012

Under what circumstances is a Drug and Alcohol Evaluation required in Illinois?

By Theodore Harvatin

Illinois law provides for different situations in which a person arrested for Driving Under the Influence (DUI) may be required to obtain a Drug and Alcohol Evaluation Uniform Report. It all begins with some sort of encounter with law enforcement, possibly a traffic violation which, according to Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968) is a permissible basis for a police officer to come into contact with a member of the public.

Or the driver may be involved in a collision that, even though not the driver’s fault, forms the basis of a police intrusion. Even a burned out turn signal, a DUI roadblock or a random running of a license plate can justify a stop.

Thereafter, the officer may detect signs of possible impairment. These may include an odor of alcohol, slurred speech, bloodshot, watery eyes, confusion about where you have been and where you are going, and difficulty producing your license, registration and insurance cards. Following that, the officer will probably ask you to exit your vehicle so that he can administer standardized field sobriety tests.

The three tests that are typically administered are the Horizontal Gaze Nystagmus (the HGN is the procedure in which the police move a pencil across your line of vision), the walk-and-turn (walking a straight line) and the one-legged stand, or OLS. Each test is scored for the number of clues (errors) from which the officer makes a subjective conclusion as to whether or not you passed.

The next test will be administered using a Portable Breath Test (PBT) device, as authorized by Illinois law (625 ILCS 5/11-501.5) to determine whether there exists probable cause to arrest for DUI. However the PBT results are not admissible in the DUI prosecution itself as a means of proving your alcohol blood alcohol content.

At this point, the police will decide whether or not to arrest you. If you are arrested, you will be asked to take a “chemical test”, either of your breath or blood. The breath test is administered with a type of machine that the Illinois State Police have allegedly certified for accuracy pursuant to 20 Illinois Administrative Code, Part 1286. The results of this test are admissible at trial to prove your blood alcohol contents. 625 ILCS 5/11-501.2

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Published on: September 14, 2012

What is an Illinois Alcohol and Drug Evaluation?

By Theodore Harvatin

If you are arrested for Driving Under the Influence (DUI) in Illinois, you may be required to obtain an Illinois Alcohol and Drug Evaluation Uniform Report (Evaluation) An Evaluation is necessary as a condition of being sentenced to court supervision as well as when preparing for a driver’s license hearing following a DUI revocation.

Court supervision for a DUI arrest is available only if you have never received court supervision and never been convicted of DUI in Illinois or any other state. Supervision is also unavailable if you have previously received a reckless driving disposition as a result of a plea bargain. 730 ILCS 5/5-6.1(d) While it appears clear to this writer that this exception was intended to apply only when an initial DUI charge is pled down to reckless driving, the Illinois Supreme Court has held that any plea bargain involving reckless driving, even if alcohol or other drugs were not in any way involved, will preclude a subsequent DUI supervision. People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 902 N.E.2d 667, 327 Ill. Dec. 546 (2009)

A disposition of court supervision and successful completion of the terms of supervision is not a “conviction” 730 ILCS 5/5-6-3.1(f) Therefore, a sentence of court supervision for DUI will not cause a driver’s license revocation, since a revocation requires a conviction. 625 ILCS 5/6-205(a)(2)

On the other hand, if you are convicted of DUI, your driver’s license will be revoked. In order to restore your driving privileges, you must have a driver’s license hearing with the Secretary of State. 625 ILCS 2/118
Thus, if you are preparing to be sentenced to court supervision or to have a driver’s license hearing, you must obtain an Evaluation. The Evaluation is important to the process, as it is the basis for determining how many hours of alcohol classes you will be required to complete.

The Evaluation must list all DUI “dispositions”. That term encompasses DUI convictions, supervisions, reckless driving pled down from DUI, statutory summary suspensions and implied consent suspensions imposed by 625 ILCS 5/6-206(a)(31) Out-of-state dispositions must be listed.

The Evaluation, as well as the first updated report, must include a detailed discussion of the last DUI disposition. The Evaluation must list any arrests for Boating or Snowmobiling Under the Influence, zero tolerance offenses, as well as any non-driving related offenses in which alcohol or other drugs were a factor, including under aged drinking and fake ID tickets, along with criminal charges (felonies and misdemeanors) in which alcohol or other drugs were a factor.

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Published on: September 7, 2012

If I am under 21, is it legal in Illinois to drink as long as I am not drunk?

By Theodore Harvatin

There are numerous means by which a person under the age of 21 (youthful drivers) is acting against the Illinois Vehicle. 625 ILCS Chapters 2-6 and 11 contain the statutory law relating to Driving Under the Influences offenses in Illinois. Many of the Illinois traffic laws are written in broad terms and the discretion for enforcing them is vested in the Illinois Secretary of State. 625 ILCS 5/2-101; People v. Pine, 129 Ill. 2d 88, 542 N.E.2d 711, 134 Ill. Dec. 365 (1989)

The Secretary of State has implemented administrative rules to carry out his statutory mandate. 92 Illinois Administrative Code (IAC), Parts 1000, 1001, 1030, 1040 Although the Secretary of State has broad discretion, the rules he promulgates may not exceed his statutory mandate. Franz v. Edgar (1985), 133 Ill.App.3d 513, 88 Ill.Dec. 557, 478 N.E.2d 1165, appeal denied, 108 Ill.2d (31).

You must first look to the Illinois Vehicle Code to determine if a certain action related to the safe operation of motor vehicles is legal. No driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken. 625 ILCS 5/11-502 This is commonly referred to as illegal transportation of alcohol or “open container”.

Upon determining that an act is illegal, you must next look to the statutes and rules to discern the penalties and driver’s license sanctions. The Illinois Vehicle Code provides that a youthful offender who is convicted of illegal transportation may, at the discretion of the Secretary of State, suffer a driver’s license suspension. 625 ILCS 5/6-206(a)(33)

The Vehicle Code does not make the suspension automatic or indicate for how long it will be. For the answer to this, you must refer to the Administrative Code. 92 IAC §1040.43 a) provides that the Secretary “shall”(mandatory) suspend for 12 months.

On the other hand, the Vehicle Code is specific with regards to a second conviction. A second conviction while under the age of 21 is a mandatory revocation as provided by statute. 625 ILCS 5/6-205(a)(13)

A youthful offender may also be suspended for a conviction due to a violation of Liquor Control Act of 1934 or similar local ordinance. 625 ILCS 5/6-206(a)(38). Again, the Vehicle Code has no specific requirement that the Secretary of State must suspend for a conviction. But the IAC does. 92 IAC §1040.34 a) 9)

By contrast, the Vehicle Code requires a 3-month suspension, no more, no less, if you receive supervision for a violation of the Liquor Control Act of 1934. 625 ILCS 5/6-206(a)(43) and occupy a motor vehicle. A 12-month suspension for such a violation is excessive. Webb v. White, 364 Ill. App. 3d 650, 850 N.E.2d 233, 302 Ill. Dec. 796 (4th Dist.2006)

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Published on: August 31, 2012

Sangamon County DUI Deputy exhibits troubling behavior

By Theodore Harvatin

Driving Under the Influence (DUI) is one of the most commonly charged offenses that Illinois traffic lawyers handle. In Illinois alone, about 50,000 such cases are filed each year.

In order to sustain a charge of DUI, the state must prove that the defendant (the accused) was 1) operating or in actual physical control of a 2) vehicle 3) within the State of Illinois 4) while under the influence of alcohol, or with a blood alcohol content (BAC) of .08 or greater. 625 ILCS 5/11-500. You do not have to be driving at the moment that the police observe you, and while a common indicator of actual physical control includes being behind the wheel of the vehicle with the keys in the ignition, the lack of those factors does not create an automatic defense to a DUI charge. Rather, the determination is made on a case-by-case basis. City of Naperville v. Watson, 175 Ill. 2d 399, 677 N.E.2d 955, 222 Ill. Dec. 421 (1997)

A “vehicle” includes every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title except devices moved by human power. 625 ILCS 5/1-217. This definition excepts bicycles, since they are human-powered. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV and a farm tractor are “vehicles”. People v. Martinez, 296 Ill. App. 3d 330, 694 N.E.2d 1084, 230 Ill. Dec. 806, 1998 WL 229582 (1998)

The DUI laws apply to any driving within the State of Illinois, even to private property. On the other hand, the Statutory Summary Suspension (SSS) laws due not apply to private property People v. Montelongo, 152 Ill. App. 3d 518, 504 N.E.2d 936, 105 Ill. Dec. 651 (1987) but do apply to publicly maintained parking lots. People v. Culbertson, 258 Ill. App. 3d 294, 630 N.E.2d 489, 196 Ill. Dec. 554 (1994) Likewise, if the police observe you driving on a public way in order to access a private lot, the SSS rules apply. People v. Wingren, 167 Ill. App. 3d 313, 521 N.E.2d 130, 118 Ill. Dec. 62 (1988)

To prove that the driving occurred while you were under the influence of alcohol, the state must demonstrate that your ability think and act with ordinary care was impaired from alcohol. A DUI based upon a .08 or higher BAC implies proper calibration and administration of the testing machine.

All of these issues require a judge or jury believing what the police have to say. But what happens if some police are dishonest and/or have an agenda beyond law enforcement?

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