Illinois DUI Lawyer Blawg

Published on: January 20, 2012

Former firefighter sentenced to jail in connection with Champaign County DUI charge

A former Urbana (Champaign County) firefighter has been sentenced to jail. At the time of the offense, he was under a court ordered conditional discharge as a result of a previous conviction for driving under the influence (DUI).

In the state of Illinois, there is a law that makes it illegal to drive under the influence of alcohol, commonly referred to as DUI. The law in question provides in part as follows: “(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 [625 ILCS 5/11-501.2];
(2) under the influence of alcohol…” 625 ILCS 5/11-501
It is possible to be charged with non-alcohol DUI. For example, under Section 11-501, it is also illegal to drive while:
3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving.

However, the majority of the DUI arrests and prosecutions in Illinois involve alcohol. With regard to alcohol, there are two types of DUI charges in Illinois.

You can be charged with driving with a blood alcohol content of .08 or greater. 625 ILCS 5/11-501.2 Under these so-called “per se” prosecutions, the state need not prove that your ability to drive was actually impaired by alcohol. The mere fact you were driving with a blood alcohol content of .08 or greater is a crime. People v. Ziltz 98 Ill.2d 38, 455 N.E.2d 70 (1983)

An alcohol-related DUI can also be based upon the fact, as stated in the Illinois Pattern Jury Instructions (IPI) that “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 The state is not required to prove that you were “drunk” or “intoxicated” but simply that you were impaired to a degree to reduce your ability to think and act with ordinary care.

The firefighter was convicted of DUI in April 2010. He pled guilty. At that point, he was eligible for court supervision but did not receive it.

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Published on: January 13, 2012

Will County man charged with third Driving Under the Influence (DUI) charge in less than a year

By Theodore Harvatin

In November 2011, a Will County man was arrested for DUI for the third time in less than 12 months. Laws in Illinois are created in two ways. The first is judge made law, known as “case law” because it is decided based upon specific cases.

The second type of law is known as “statutory law” or legislation. These are the rules (“legislation”) that are written by our elected representatives. In Illinois, this legislature is known as the Illinois General Assembly.

Relevant to this discussion is 625 ILCS 5/11-501, et. seq. the DUI statute, which reads in relevant part: (a) A person shall not drive or be in actual physical control of any vehicle within this State while “under the influence of alcohol”. Many (incorrectly) refer to this as “drunk driving”.

Such a designation leaves one with the impression that DUI requires the state to demonstrate that you were highly intoxicated (“falling down drunk”). Instead, the state need only prove, beyond a reasonable doubt, that you were under the influence of alcohol.

This leads to the following jury instruction that defines for the jury what DUI means: “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”. People v. Schneider, 362 Ill. 478, 200 N.E. 321 (1936); Illinois Pattern Instruction (Criminal) 23.29
As a result of his third DUI arrest, the Will County driver faces the following potential consequences: First, he could receive a felony conviction for aggravated DUI 625 ILCS 5/11-501(d)(1)(A) Assuming no additional aggravating factors, such as a transporting a child under the age of 16 years, death of one or more other persons, a BAC of .16 or greater, the offense is a Class 2 felony. 625 ILCS 5/11-501(d)(2)(B) Such an offense is punishable by a fine of up to $25,000 and/or 3-7 years in the state penitentiary as stated in 730 ILCS 5/5-4.5-35

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Published on: January 6, 2012

Illinois Secretary of State proposes new interlock rule

By Theodore Harvatin

The Illinois Vehicle Code (625 ILCS Chapter 5) governs the rules and obligations of all motorists operating a motor vehicle on the public roadways of the State of Illinois, including the DUI laws. The Illinois General Assembly, elected by the citizens of this state, writes these laws, which are known as statutes.

However, because the statutes cannot be written to cover every conceivable situation, the General Assembly has vested the Illinois Secretary of State with the “powers and duties and jurisdiction” of administering the Illinois Vehicle Code. 625 ILCS 5/2-101 In this capacity, the Secretary of State, although an elected official, functions as an administrative agency. Clingenpeel v. Edgar, 133 Ill.App.3d 507, 487 N.E.2d 1172 (4th Dist. 1985) Therefore, he is subject to the Administrative Procedure Act. (“APA”) (5 ILCS 100/1-1 et. seq.).

The APA sets out the requirement that all rules be promulgated. The APA requires that: “All rules of agencies shall be adopted in accordance with this Article.” (5 ILCS 100/5-5).

Section 5-10 of the APA requires all agencies to adopt rules of practice for formal hearings. It requires agencies to make available for public inspection all rules adopted by the agency in the discharge of its functions.

When a you are charged in Illinois with Driving Under the Influence (DUI), there is a criminal case and a driver’s license case. How the driver’s license case unfolds depends upon a number of factors.

One of those factors is whether or not you have had a DUI in the previous 5 years. If you have not, you are what is known as a “first offender”, even if this is not your first DUI. If you have had a DUI in the previous 5 years, you are a non first offender.

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Published on: December 30, 2011

Edgar County woman faces charges of aggravated Driving Under the Influence (DUI)

By Theodore Harvatin

A woman from Paris, Illinois, county seat of Edgar County, faces charges of aggravated DUI. In this tragic incident, the defendant (the accused) was allegedly driving south in the northbound lane when her vehicle struck an oncoming vehicle causing a crash. As a result of the crash, two passengers on the other vehicle are dead.

In the past, the driver would have been charge with reckless homicide arising from the operation of a motor vehicle. 720 ILCS 5/9-3(b) That law provided that if a person was under the influence of alcohol and was involved in a crash that resulted in death, he was automatically guilty of reckless homicide even without the state having to prove recklessness.

In the criminal law, the state has the burden of proving each element of the crime beyond a reasonable doubt. The Illinois Supreme Court ruled this law violated the Constitution by impermissibly requiring the defendant to prove that he was not reckless, rather than requiring the state to prove that he was. People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003)

The General Assembly has added the offense of aggravated DUI (625 ILCS 5/11-501(d)) “Aggravated” means “extreme” or “especially bad”. Aggravated DUI applies if, while you are operating a motor vehicle under the influence of alcohol, one or more people die and your impaired driving was a “proximate cause” of their death.. 625 ILCS 5/11-501(d)(1)(F) Unlike the reckless homicide law that the Supreme Court held was unconstitutional, this law appears to be constitutional since it requires to state to prove that your impaired driving was the cause of the accident instead of assuming that you were reckless.

Aggravated DUI that results in death is a Class 4 felony punishable by a term of 3-14 years in prison, unless the court finds that “extraordinary circumstances exist” to require probation. However, if two or more persons die, the felony is upgraded to a Class 2 felony and the prison time becomes 6-28 years. 625 ILCS 5/11-501(d((2)(G)

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Published on: December 23, 2011

Accused claims that Illinois DUI law is unconstitutional

By Theodore Harvatin

In 2011, the Illinois Supreme Court handed down its decision in People. v. Martin, 2011 IL 109102. The issue involved a fairly technical legal question known as “causation”.

Causation refers the notion that in the criminal law, a person is responsible for the outcome of an event only if the state is able to prove that something he did in an illegal manner caused the outcome. For instance, if your headlight is not operating properly and someone rear ends you, the state cannot say that you were the cause of the collision even though your car was not in proper working order. In other words, your non-functioning headlight, while illegal, was not in any manner responsible for your being hit from behind.

This idea came into play in the Martin because of the manner in which certain DUI laws are written. Under 625 ILCS 5/11-500, you can be charged with Driving Under the Influence (DUI) in a number of ways.

One way is prove you were “under the influence” of alcohol, drugs, or a combination of the two. Another is to prove that you were driving with a blood alcohol content of .08 or greater. A third is to show that you were under the influence of other intoxicants (huffing for instance).

One can make an argument that if your blood alcohol content is above .08, you are potentially a dangerous driver. The state should not be limited to proving your impairment by reference to your physical condition, actions and conduct at the time of the alleged offense.

Your blood alcohol content alone should be sufficient to show you ought not to have been driving. It would seem that since the purpose of the DUI laws is to keep dangerous drivers off the public roadway, this is a reasonable law.

However, there is one situation in which the state need merely show that you were operating your motor vehicle at a time you had any amount, no matter how small, of a prohibited drug in your system. 625 ILCS 5/11-501(a)(6) Unlike alcohol, which leaves your system relatively quickly, some drugs remain in your body long after (sometime for weeks) you ingested them and well after their presence in your system would impact the mind and body in ways that could make you an unsafe driver.

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Published on: December 15, 2011

McClean County driver sentenced to 20 years in prison for DUI

By Theodore Harvatin

A McClean County judge sentenced a Bloomington-Normal man to 20 years in prison following his 11th conviction for driving under the influence (DUI) In the State of Illinois, it is illegal to operate a motor vehicle on the public roadways while you are under the influence of alcohol. 625 ILCS 5/11-501
There is on one-size-fits-all answer to what the consequences of a DUI conviction are. In general, you would be looking at two separate issues, the criminal side of the DUI (fines, jail, probation) and the driver’s license consequences.

A first or second DUI conviction, absent death or serious injury, is 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 no more than 364 days. 730 ILCS 5/5-4.5-5.5
A third DUI violation is a Class 4 felony. As the number of DUI violations escalates, the potential punishment does as well. 625 ILCS 5/11-501(d). After a sixth or more DUI conviction, you can be charged with a Class-X felony, with no probation and 6-30 years in prison and up to a $25,000 fine. 730 ILCS 5/5-4.5-25
Many DUI violations also require payment of fees relating to DUI prevention, victim compensation and other politically popular causes. The judge will probably also order you to obtain a drug and alcohol evaluation and complete the drink and driving classes (Driver Risk Education, “DRE”) and alcohol counseling.

You must obtain the evaluation from an agency licensed by the State of Illinois, Department of Human Services, Division of Alcohol and Substance Abuse (DASA). DASA has rules as to the minimum number of hours you must complete, and the agency is allowed to increase those hours if it feels the need.

While the rules are somewhat arcane, in general, if you have no previous DUI arrests and you take a breath test and register under .15, your classification would be minimal risk, requiring you to complete a 10-hour DRE course. Title 77 Illinois Administrative Code §2060.101 and Title 92 Illinois Administrative Code §1001.10 and following.

Those same set of rules further provide if you refuse to take a test or register equal to or greater than .15 but less than .20 results and this is your first DUI offense, you must complete the 10-hour course and 12 hours of early intervention alcohol education. If you register .20 or higher and this is your first offense, you are what is known as significant risk and must take the DRE course and 20 hours of alcohol abuse treatment.

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Published on: December 9, 2011

Williamson County, Illinois crash leads to injuries and DUI charges

By Theodore Harvatin

Illinois has a law against Driving Under the Influence (DUI) of alcohol or drugs. 625 ILCS 5/11-501 and following. Some people are surprised to learn that they can be arrested for DUI in Illinois even if they are involved in a crash in which they are the only ones injured.

There are several different types of DUI in Illinois. 625 ILCS 5/11-501(a) provides as follows: (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 [625 ILCS 5/11-501.2];
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.

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Published on: December 2, 2011

Illinois’ lifetime ban on driving privileges may block the ability to obtain an out of state driver’s license

By Theodore Harvatin

Many states impose lifetime bans on driving privileges after someone is convicted of a certain number of driving under the influence (DUI) offenses. Illinois has a similar provision that on its face seems straightforward but is difficult to navigate.

The Illinois law setting forth the consequences of a DUI conviction are found at 625 ILCS 5/6-208. In analyzing the effect of this statute, it is important to keep in mind that it only applies to “convictions”.

Therefore, to determine your situation, you must do more than count the number of times that you were arrested for DUI. If the arrest does not result in a conviction for DUI, it does not count against you.

Obviously, if the DUI is dismissed, there is no conviction. Likewise, if the charge is reduced to reckless driving, there is no conviction.

Finally, Illinois has a provision known as court supervision. A disposition of court supervision, if successfully completed, is not, for purposes of Illinois law, a conviction. 730 ILCS 5/5-6-1. (d); People v. Schuning, 106 Ill. 2d 41, 86 Ill. Dec. 922, 476 N.E.2d 423 (1985)

Illinois law clearly provides that in determining the length of a revocation following a DUI conviction, the Illinois Secretary of State is to consider out-of-state convictions. 625 ILCS 5/6-208. However, this analysis must be further refined.

When someone who holds a license issued by one state is convicted of a DUI stemming from an arrest in another state, the arresting state, if a member of the Interstate Driver’s License Compact (“Compact”), 625 ILCS 5/1-117, is supposed to report the DUI conviction to the licensing state. In the event Illinois receives such a report, it will include that DUI conviction on the driver’s driving record.

When calculating the length of a revocation, those out-of-state convictions that the arresting state reports to Illinois will count. However, not all states are members of the Compact. Moreover, not all states are diligent about reporting DUI convictions to other states. Nonetheless, these out-of-state convictions may catch up with you in another way.

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Published on: November 25, 2011

Interlock Devices in connection with an Illinois DUI

By Theodore Harvatin

Mothers Against Drunk Drivers (MADD) is convinced that the answer to DUI (Driving Under the Influence) is to require anyone convicted of DUI to install an ignition interlock device. In Illinois, this is known as a Breath Alcohol Ignition Interlock Device (BAIID)

A machine designed to measure the alcohol content of your breath is wired into your vehicle’s ignition. The device has a mouthpiece attached to it. You must blow into the mouthpiece and not register above a certain alcohol level in order for your vehicle to start. The results of all breath samples are stored and provided to the Illinois Secretary of State. 92 Ill. Adm. Code §1001.441
MADD, along with the manufacturers and installers of the BAIID machines, relentlessly promote the use of this device. After all, if the DUI “crisis” were ever alleviated, neither organization would have a reason to exist.

These organizations use their lobbying and campaign contributions at both the federal and state level. Their latest target is Massachusetts. They are promoting that first time DUI offenders be required to use an interlock device. It is a safe bet that at some point, they will set their sites on Illinois.

The law in Illinois with relation to when BAIID is required is more than a little confusing for someone who does not specialize in DUI. There exist two separate situations in which BAIID is required and within each of those situations, there are exceptions to the requirement.

To understand the differences, you must keep in mind that there are two prongs to a DUI arrest. At the time of a DUI arrest, the police will ask you to submit to a blood or breath test to determine what your blood alcohol content is. 625 ILCS 5/11-501.1
If you choose to submit to testing and register a level of .08 or greater, those results can be used against you in the DUI prosecution, as operating a motor vehicle with a BAC above .08 is illegal, or in other words, a crime. 625 ILCS 5/11-501 Even if you elect not to submit to testing, the state can charge you with driving while impaired by alcohol, or in other words, straight DUI.

Upon being convicted of a DUI, you face criminal consequences, (jail and or fines). For purposes of BAIID issues, the more important consequence of a DUI conviction is a driver’s license revocation.

Once your driver’s license is revoked because you were convicted of DUI, you must have a hearing with the Illinois Secretary of State. 625 ILCS 5/6-208 As Illinois law presently stands, you are not required to have BAIID in the event you are issued a restricted driving permit (RDP) or full reinstatement if this is your only DUI disposition in this or any other state. 625 ILCS 5/6-205(c) and 6-206(c)3
Furthermore, if you have had a previous DUI arrest and avoided being convicted of the DUI and your statutory summary suspension from the earlier arrest was rescinded, you are not BAIID required. And if you were not convicted of a prior DUI and received an SSS but the previous SSS was more than 10 years ago, you are not BAIID.

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Published on: November 18, 2011

Madison County DUI fatality results in guilty plea

By Theodore Harvatin

On October 22, 2010, Brittney Rhea Butler was driving on Route 143 in Madison County, Illinois. The motor vehicle she was operating slammed into the rear of a vehicle that was stopped on the highway waiting to make a left turn.

In Butler’s 1985 Cadillac was a 35 year-old passenger, Jeffrey L. Davis of Edwardsville, Illiinois. While Butler suffered only minor injuries, Davis died.

There were no skid marks; police estimated the Butler vehicle was traveling 80 MPH. Butler’s blood alcohol level was .162. She was charged with aggravated Driving Under the Influence (DUI).

The legal limit for an Illinois DUI is .08. 625 ILCS 5/11-501.2 The possible penalties and driver’s license sanctions for a first time DUI are up to 364 days in the county jail and/or a fine of up to $2,500.00 and a one year driver’s license revocation. 625 ILCS 5/11-501; 730 ILCS 5/5-4.5-55; 625 ILCS 5/6-208(b)(1)

Illinois has a DUI disposition known as court supervision. If a person is eligible for court supervision and if the judge sees fit to grant supervision, jail time cannot be imposed. In addition, since supervision is not a conviction, there will not be a driver’s license revocation. 730 ILCS 5/5-6-1. (d)

However, Butler was charged with aggravated DUI and supervision was not an option. The DUI is considered “aggravated” because of the fatality. 625 ILCS 5/11-501(d)(1)(F)

As a result of the aggravated nature of the offense, not only was supervision not an option, but since aggravated DUI is a felony, Butler faced from 3 to 14 years in the Illinois Department of Corrections (prison). Butler agreed to plead guilty.

In exchange for her guilty plea, prosecutors agreed to seek no more than 10 years in prison. The final sentence will be up to the judge.

In the opinion of this DUI lawyer, Butler is likely to receive 10 years. In determining an appropriate sentence, the judge is entitled to look at Butler’s criminal past.

At the time Butler committed this offense, she was on probation for two felony drug convictions from only year earlier. She also had a 2007 DUI arrest that was pled down to reckless driving.

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