Illinois DUI Lawyer Blawg

Illinois law provides that a first time offense for Driving Under the Influence (DUI) is a Class-A misdemeanor if there are no additional circumstances 625 ILCS 5/11-501(c)(1) The maximum criminal penalty is a fine of up to $2,500 and/or up to 364 days in the county jail. § 730 ILCS 5/5-4.5-55
However, in addition to any other penalties the judge may impose, if there are any passengers in the vehicle under the age of 16 years at the time of the offense, the judge is required to impose 6 months of county jail time, an additional mandatory minimum fine of $1,000, and 25 days of community service in a program benefiting children. Furthermore, if the blood alcohol content (BAC) at the time of the arrest is .16 or higher, the offender will be sentenced to a mandatory minimum of 100 hours of community service and a mandatory minimum fine of $500.

DUI can also be a felony, known as “aggravated DUI” under a number of scenarios set forth in 625 ILCS 5/11-501(d). Among the aggravating factors are that the person, while under the influence: was driving a school bus with children under 18; caused death or serious injury from a crash; caused a crash in a school zone resulting in injuries; drove when his driver’s license was revoked, suspended or otherwise invalid; knowingly drove without insurance; and caused a crash while transporting a person under the age of 16 who suffers injuries.

Another felony enhancement arises if the defendant has “violated” the DUI laws on two prior occasions. Although court supervision is not a conviction, since the aggravated DUI law merely requires a prior “violation”, court supervision counts towards a felony enhancement. People v. Lambert, 249 Ill. App. 3d 726, 188 Ill. Dec. 909, 619 N.E.2d 534 (3 Dist. 1993) In addition, out-of-state DUI offenses are included.

An Illinois DUI offense also carries with it noncriminal penalties, known as “administrative sanctions”, which is another way of referring to driver’s license consequences. A DUI conviction results in a revocation of your license.

Because a conviction leads to a revocation, the Illinois Secretary of State will take your driver’s license out of circulation and also take away your right to drive in Illinois, notwithstanding the fact you may have a license issued by another state or country. You may only obtain restoration of a revoked driver’s license by having a driver’s license hearing with the Secretary of State.

A driver’s license suspension is imposed in connection with the DUI officer’s request that you provide a blood or breath sample to determine your BAC at the time of a DUI arrest. A refusal to test, or testing with a BAC of .08 or greater, results in a suspension of your driver’s license.

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Sandra Vasquez of Aurora Illinois was operating a motor vehicle that was involved in a fatal crash that killed 5 teenagers in 2007. It was determined that Vasquez was driving under the influence (DUI).

The DUI law lists a number of aggravating factors (“aggravating” meaning facts exist that make the offense more serious than the typical case). One of those factors in aggravation is that the DUI cause a fatality. 625 ILCS 5/11-501(d)(2)(G)

Most cases of aggravated DUI are a Class-2 felony. As such, the term of incarceration is 3-7 years but probation (no jail) is an option. § 730 ILCS 5/5-4.5-35. However, when the DUI involves a fatality, it is a felony with an extended term (extra prison time) of 3-14 years if there is a single death and 6-28 years for multiple deaths, as in Vasquez’s case.

Furthermore, a fatality DUI offense is not subject to probation unless the court finds that “extraordinary circumstances” exist. Vasquez claimed extraordinary circumstances existed because she had no prior record and she worked with dementia patients.

In a criminal case, the Seventh Amendment to the United States Constitution gives the defendant (the accused) the right to a trial by jury. However, while the jury decides guilt or innocence, in Illinois, the judge determines the sentence.

The judge for Vasquez determined that extraordinary circumstances did not exist and sentenced her to 15 years in prison. Vasquez, as is her right, appealed.

The Illinois court system begins with numerous trial courts in all 102 counties of the state. Everybody has an automatic right to appeal an unfavorable ruling to one of the five appellate courts located in Chicago, Springfield, Mt. Vernon, Elgin and Ottawa.

An appeal is assigned to one of the five appellate courts depending upon which trial judge heard the case. At times, this results in conflicts among the appellate courts, all of which issue written decisions.

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The state of Illinois has a law that makes it illegal to drive under the influence (“DUI”). 625 ILCS 5/11-501. According to the Illinois Secretary of State, his office received reports of 49,100 DUI arrests in Illinois for the year 2010.

In the early days of the DUI laws, the only prohibition was driving under the influence of alcohol. The state was required to prove that alcohol affected your ability to drive safely.

In fact, the short cut name for DUI was “drunk driving” and the legal name was “driving while intoxicated”. This wording led the general public, including jurors, to infer that in order to be guilty of DUI, you had to be “stumbling drunk”.

The legal limit was a very high .15 blood alcohol content, which was later lowered to .10 and finally, in July 1997, it was reduced to the current .08. 625 ILCS 5/11-501(a)(1) The name was changed to “driving under the influence”.

The police had always had the right to ask you to take a blood or breath test. However, there was no driver’s license penalty for refusing, and the jury was not told that you had refused.

There were no established standards for performing standardized field sobriety tests (SFTS), including the officer waving the pen back and forth, walking a straight line and the one-legged stand, or for explaining the results to the jury.

All of that has changed under today’s DUI laws. If you take a test and you register .08 or higher, your driver’s license is subject to a suspension. If you do not take a test, the suspension is twice as long and the state is allowed to argue to the jury that you did not take the test because you knew you were drunk. The suspension applies even if the DUI is thrown out.

There are also products other than alcohol that can lead to a DUI arrest. It is illegal to drive under the influence of a drug or combination of drugs other than alcohol (alcohol itself is a drug). Thus, it’s DUI to drive high on cocaine for instance.

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A Belleville Illinois police officer arrested Fairview Heights police sergeant James Krummrich for the offense of Driving Under the Influence on St. Patrick’s Day. Because of the unusual evidence presented to him at a hearing related to the case, the judge quoted lyrics from a Buffalo Springfield song, “There’s something happening here, what it is ain’t exactly clear.”

The police must have a reason to come in contact with you. Legally speaking, they are required to have a “reasonable suspicion” of criminal activity in order to be in compliance with the Fourth Amendment to the United States Constitution. Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968)

In this case, the accused was involved in a crash. Since not every driver who crashes is drunk, before the police can investigate a DUI charge, they must have a reasonable basis to believe the driver operated his motor vehicle while under the influence, since a mere “hunch” is not enough. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996)

The investigating officer told the judge that the accused admitted he was driving the truck that was involved in the crash. Moreover, the officer testified that the defendant smelled of alcohol, his eyes were glassy and he admitted he had a few drinks.

Nonetheless, the investigating officer stated in his police report that he did not believe Sergeant Krummrich was impaired. In addition, a passenger in the Krummrich vehicle, Collinsville Police Sergeant Charles Mackin, testified he did not believe his driver was intoxicated and that he would not have made an arrest for DUI if he had been the investigating officer.

The investigating officer testified he asked the driver to take a breath test and he refused. However, both the driver and his passenger denied such a request was made. The investigating officer’s supervisor, who was not present at the scene, ordered the arresting officer to make an arrest.

Adding further confusion, the officer who assisted the arresting officer testified he asked the driver to submit to standardized field sobriety tests (SFTS). However, that information was not in the assisting officer’s report, although it was in the investigating officer’s report.

The investigating officer testified that he had a video from his patrol car camera the driver’s refusal to take the FSTS. However, the prosecutors never turned over this video to the defense during discovery, as would be required under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Kladis, 2011 IL 110920

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On February 27, 2012, a man came to the door of a woman he did not know. He confessed that on August 7, 2008, he had run down the woman’s sister with his car, causing serious injuries that led to her death, after which he fled the scene. The woman quickly died of her injuries.

Approximately 18 months after the hit-and-run, the man was charged with Driving Under the Influence (DUI). In that case, he pleaded guilty to reckless driving and was ordered to obtain a drug and alcohol evaluation and complete treatment for alcohol abuse and mental health issues.

The minimum number of alcohol treatment hours you must complete after a DUI offense is set by rules established by the State of Illinois, Department of Human Services, Division of Alcohol and Substance Abuse (DASA) in close coordination with the Illinois Secretary of State and DUI judges throughout the state. Keep in mind that these are the minimum requirements, and the person conducting the evaluation may require more hours.

DASA rules mandate that the lowest risk level, known as “minimal risk” requires completion of a 10-hour Driver Risk Education (DRE) course designed to educate you on the dangers of drinking and driving and the physical effects of alcohol (primarily how much you can drink before you are considered under the law to be legally impaired to drive). The following facts must be present in order to fall into the minimal risk category:

1) this is your first DUI arrest;
2) you submitted to a blood or breath test;
3) your blood alcohol content (BAC) was under .15; and
4) you have no symptoms of abuse or dependency. Title 77 Illinois Administrative Code §2060.101 and Title 92 Illinois Administrative Code §1001.10 and following.

The next classification level is “moderate risk”. The minimum moderate risk requirements are completion of DRE and 12-hours of early intervention in an effort to eliminate any future alcohol problems that could lead to another DUI.

Under the DASA protocol, you may be moderate risk only if:

1) this is your first DUI offense;
2) you either do not agree to give a blood or breath test or register at least .15 but under .20; and
3) you have no abuse or dependency symptoms.

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For anyone 21 or older, the mere act of consuming alcohol to the point of physical impairment is legal. There really is no such thing as being “legally intoxicated”.

What is against the law is operating a motor vehicle with enough alcohol in your bloodstream to be impaired. The offense of Driving Under the Influence (DUI) is defined in Illinois law. 625 ILCS 5/11-501.

Illinois has accepted that if you have a blood alcohol content (BAC) of .08 or higher, you are a sufficient risk to the public safety and should not be driving. It is not necessary for the state to prove that you are in fact impaired.

The mere fact of a .08 or greater BAC is illegal if proven. 625 ILCS 5/11-501(a)(1); People v. Ziltz, 98 Ill. 2d 38, 74 Ill. Dec. 40, 455 N.E.2d 70 (1983). This is known as a “per se” violation.

There is also a separate DUI law under which the state must prove actual impairment. This is the charge the state must sustain if you refuse to provide a blood or breath sample upon request, as provided for by law. 625 ILCS 5/11-501.1
The law itself simply states that you shall not drive or be in actual physical control of any vehicle within the state of Illinois while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) This seemingly simple sentence raises a host of questions.

First, is it illegal to drive drunk in private property? The answer is “yes”. People v. Guynn, 33 Ill. App. 3d 736, 338 N.E.2d 239 (3 Dist. 1975); City of Highland Park v. Block, 48 Ill. App. 3d 241, 6 Ill. Dec. 285, 362 N.E.2d 1107 (2 Dist. 1977). The reason for this is that, unlike the statutory summary suspension (SSS) law, which only applies to what happens on the public highways, the language of the DUI law refers to anywhere “within the state of Illinois” and obviously includes private property.

Another aspect of a DUI involves driving or in “actual physical control” of a motor vehicle. You do not have to be “driving” the vehicle.

Many arrests occur while the driver is “sleeping it off”. Urban legend has it that to prove actual physical control, the police must find you behind the wheel with the keys in the ignition. Not necessarily.

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