Illinois DUI Lawyer Blawg

In Illinois, there are several consequences that flow from an arrest for Driving Under the Influence (DUI). The DUI statute, found at 625 ILCS 5/11-501, states, in part, that “(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;
(2) under the influence of alcohol”;
Therefore, you may be charged with DUI based upon the fact your blood alcohol level (BAL) was .08 or higher. The state is not required to prove that you seemed drunk (staggering, bloodshot eyes, etc).

Quite simply, it is illegal in Illinois to drive with more than .08% alcohol in your system. It is similar to speeding. The police do not have to show that your high speed made you a dangerous driver but simply that you were driving above the posted limit.

You may be tempted to conclude, if I never take the test, they cannot prove what my BAL was and therefore cannot convict me of driving with a BAL above .08. That strategy does carry with it some risks.

Refusing the test prevents the .08 prosecution, but it allows the state to argue you had a “guilty mind”. In other words, if you had nothing to hide, why didn’t you take the test? This could help the state convict you under the second definition of DUI, (part 2 above, “under the influence of alcohol”).

DUI under this section requires the state to prove that you were in fact impaired, since your refusal to submit to testing may be considered by the jury as evidence of a guilty mind 625 ILCS 6/11-501.2; P. v. Rolfingsmeyer, 101 Ill. 2d 137, 77 Ill. Dec. 787 (1984). By not submitting to testing, you forfeit the opportunity to show you were under the legal limit and you provide the state with an argument to use against you at trial.

Refusal of the test also carries with it driver’s license consequences in terms of the statutory summary suspension (SSS). The SSS law is found at 625 ILCS 5/11-501.1 and 625 ILCS 5/6-208 and 208.1

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One of Mike Ditka’s sons, Mark Ditka, was arrested for DUI in Lake County Illinois. This follows closely on the heels of his brother Michael’s DUI arrest last month, his third. Some may recall their father Mike Ditka, former NFL football player, coach and television announcer, was arrested for DUI a few years ago, in the northern part of Illinois.

Michael has two previous DUI violations. Therefore, Illinois prosecutors have charged him with felony DUI in accordance with 625 ILCS 5/11-501 (d). Although his first offense may have resulted in court supervision, which is not a conviction, Michael faces a felony offense due to appellate court case law holding that any prior “violation”, including supervision, counts in determining whether there is a third violation. People v. Bloomberg, 378 Ill. App. 3d 686, 881 N.E.2d 615, 317 Ill. Dec. 447, (Ill. App. Ct. 2008)

Both Michael and Mark have pleaded not guilty. Since DUI is a criminal offense, the state has the burden of proving them guilty beyond a reasonable doubt. People v. Shaffer, 134 Ill. App. 3d 548, 89 Ill. Dec. 709, 481 N.E.2d 61 (1 Dist. 1985)

On the other hand, Mark is eligible to receive court supervision. Court supervision is not a conviction. This is important because the Illinois Secretary of State will not revoke your license if you are not convicted of DUI. Therefore, you will not be required to attend a driver’s license hearing.

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Under the Fifth Amendment to the United States Constitution, the state cannot force you to give evidence against yourself (you have “the right to remain silent”; you can “take the Fifth”). Under the Sixth Amendment to the United States Constitution, you have the right to a lawyer when you are charged with a crime.

A famous case, Miranda v. Arizona 384 U.S. 436 (1966), held that the police must inform you of the right to remain silent, that anything you say may be used against you, that you have the right to consult with attorney before any police questioning and that a lawyer will be appointed if you are unable to afford one. This is often referred to as “reading me my rights”.

The United States Supreme Court reasoned that if someone were not aware of his rights, then having those rights would not be of any use to them. Therefore, Miranda determined that in the proper circumstances, the police are required to inform you of your rights.

In a case known as Mapp v. Ohio, 367 U.S. 643 (1961), the court had, before the Miranda case, held that if the police violate your constitutional rights, the appropriate remedy is to exclude the evidence that the police gathered illegally. This is knows as the “exclusionary rule”.

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The Sangamon County State’s Attorney in Springfield Illinois charged a man with felony Driving Under the Influence (DUI). The charges stem from the death of the man’s seven-year-old daughter following a crash in a country road near Springfield.

The driver, with his daughter properly placed in a child restraint seat, drove off the roadway, down an embankment and across a creek bed, then crashed into a ditch. The front of the vehicle suffered extensive damage. The allegation is that the driver committed a violation of the Illinois DUI law 625 ILCS 5/11-501
Court records show that the driver had two previous Springfield DUI arrests. The first charge resulted in the driver being sentenced to court supervision. Court supervision prevented a conviction which would have been entered in accordance with 625 ILCS 5/6-205(a)(2) and created the need for a driver’s license hearing.

The second DUI charge was dismissed, a case that demonstrates there are two elements to a DUI charge. The first element is being under the influence.

In addition, to prove DUI, the police must show that you were in actual, physical control of the vehicle while under the influence. However, they are not required to show that you were actually driving, but merely that you either had been driving or were about to drive. Consequently, you can be guilty of DUI even if you are pulled over and “sleeping it off”. People v. Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1 Dist. 1990)

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DuPage County is located in Wheaton, Illinois, a Chicago suburb known for being tough on Driving Under the Influence (DUI) offenders. Many politicians from that area have used this attitude to climb the political and judicial ladder.

According to news reports, on August 28, 2011, the defendant in this case was initially stopped for improper lane usage (weaving). 625 ILCS 5/11-709 Weaving is the most common reason that police provide for initiating an investigative stop.

Appeals courts for Wheaton DUI cases had initially held that police may initiate a stop of a driving who is weaving within his own lane, even though that is not illegal. People v. Manders, 317 Ill. App. 3d 337 (2d Dist. 2000) This case was later overruled in People v. Greco, 336 Ill. App 3d 253 (2d Dist. 2003)

The defendant was a first time DUI offender who was charged with a Class-A misdemeanor. A Class-A misdemeanor is punishable by a fine of up to $2,500.00 and/or incarceration in the county jail for up to 364 days. 730 ILCS 5/5-4.5-5.5
Because this was his first DUI charge, the accused was eligible to request court supervision and in fact received it. This brings with it several consequences.

The first is that when one is sentenced to court supervision, the judge cannot order jail time. However, a DUI supervision can never be expunged from your record. 730 ILCS 5/5-6-3.1(f).

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The City of Naperville, Illinois, located in both DuPage and Will counties, has agreed to pay a man $10,000.00 for wrongfully arresting him, and then informing the newspaper about his arrest. The victim was arrested for Driving Under the Influence (DUI) despite registering 0.00 on a breath test.

The Fourth Amendment to the Unites States Constitution requires the police to have “probable cause” before they may arrest someone. In Terry v. Ohio 392 US 1 (1968), the Untied States Supreme Court was asked to decide whether a police encounter with a citizen in public required probable cause.

The Supreme Court held that a brief, limited in scope investigatory stop does not implicate the Fourth Amendment and therefore probable cause need not be present to render a public police encounter with citizens constitutionally valid. To make an initial stop of a citizen, police are only required to have a reasonable suspicion that a crime has been, or is about to be, committed. A mere “hunch” of illegal activity is not enough.

In the context of a DUI arrest the normal course of events is for the police to notice a traffic violation, which under Terry is a sufficient basis to initiate a stop. At that point, the police may briefly investigate. You may end up with a simple traffic ticket if there is nothing amiss.

The trouble starts if there are signs of alcohol or drug use, odors, bloodshot eyes, slurred speech, difficulty locating your license. Furthering the investigation, based upon these activities, turns the stop into a seizure (arrest) for which the police must establish probable cause.

In the Naperville case, the police violated the Constitution. When the driver registered .00 on the breath test, the DUI investigation should have ended.

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