Criminal Charges and Rights of a Defendant in a DUI Arrest
At Robert W. Brown, Jr., no matter how many traffic or DUI offenses you have been charged with, you will get the professional legal help you need. In defending these types of prosecutions, it helps to know the inner workings of the prosecutor’s office. Robert Brown is a former State’s Attorney, so he has special knowledge of how and why these charges, which today often include felony counts, are brought. Mr. Brown is a respected and experienced criminal defense attorney in Lake County ready to help you with personalized, quality legal representation.
An arrest for drunk driving, driving under the influence (DUI) can be an unsettling proposition.
The felony enhancement provisions added in 2006 mandate mandatory jail time, without good time credit, for many DUI, Revoked or Suspended license offenses committed by repeat offenders. Because any violation which results in a conviction may have a serious effect on your driving privileges, insurance rates, and expose you to civil liability in a lawsuit, it is important that you are represented by a competent and experienced attorney.
Public pressure drives changes in the law
In response to public pressure, the blood alcohol concentration necessary to convict a person of DUI has been gradually reduced by the Illinois General Assembly. Currently the law provides that if a blood or breath alcohol concentration is 0.08 or greater; or any amount of a drug, substance, or compound containing cannabis, a controlled substance, or intoxicating compound is detected, a suspension will be imposed.
The corresponding criminal penalties (including jail time) have been greatly enhanced as well. Presently, the maximum penalty for a first time DUI offender is a fine of $2,500.00 and up to 364 days in jail. In Illinois a DUI conviction will automatically revoke your driving privileges for a minimum of one year. While court supervision is available for first-time offenders, thus avoiding a revocation, it is available only once in a lifetime and cannot be expunged from the public record.
Often two DUI tickets are issued - one for driving under the influence and another for driving with a blood alcohol greater than .08. [Illinois Vehicle Code, Chapter 625 ILCS 5/111-501]. A person can only be convicted of one ticket, not both.
Because Illinois DUI law makes a person liable when he is either a driver or in actual physical control of any vehicle, even drivers "sleeping it off" in the back seat of a car with the ignition keys in their pocket may be charged with DUI. Individuals have been convicted of DUI for having taken properly prescribed prescription medications, on the basis that their ability to drive a motor vehicle was impaired.
Arrests for a third DUI, a first DUI coupled with no insurance and/or no valid license, or a DUI involving great bodily harm are felonies. Felonies can carry a sentence of penitentiary time- court supervision is not available. If convicted, one’s driver license will be revoked. Under tough new DUI laws and sentencing guidelines, drunk drivers responsible for fatalities will be sentenced to a term of imprisonment unless the court determines that extraordinary circumstances exist requiring probation.
What to expect
An arrest for DUI is often triggered by a simple traffic offense such as speeding, swerving within or straddling a lane, a burned out tail light, or even the random check of a license plate disclosing a forgotten emission suspension. Roadside "safety checks" also account for many DUI arrests. During a typical traffic stop the officer’s observations concerning the suspect’s blood-shot eyes, odor of alcohol, slurred speech or difficulty producing a driver’s license will justify further investigation. From that point on the officer is building his case for prosecution by getting the driver to incriminate himself further. In most cases, the officer has already made the decision to arrest the driver.
Frequently, the police officer will question the driver at the side of the road. In Lake County many of these traffic stops are recorded by video cameras in the squad cars. The officer may ask where the individual was drinking, how much and what type of alcohol was consumed, and whether he or she is fit to drive. Many drivers respond innocently, admitting they had "a couple of beers," or even worse, they state they were "too drunk to drive." All statements made to the officer will show up in his police report and because the driver was not placed under arrest at the time, Miranda Warnings need not be given.
Next the police officer may ask the driver to perform a series of "standard performance" tests, including the Horizontal Gaze Nystagmus test (following the officer’s finger from side to side with your eyes), walk-and-turn test, one-leg-stand test, and the Rhomberg Balance Test. Each test and the accompanying instructions are difficult to perform sober and impossible to perform after a few drinks. At present Illinois law does not require a defendant to perform such tests; however, most drivers do take the tests and in doing so, greatly increase their chances of a DUI conviction.
Finally, the officer may offer the driver a PBT (Preliminary or Portable Breath Test) at the roadside to determine the driver’s blood alcohol content. Even if one passes that test, the officer may suspect that drugs are involved and still place the driver under arrest. It is advisable to refuse such tests unless you are certain that you will pass and have not taken any illegal drugs or prescription medications.
Once placed under arrest and transported to the police station, a driver will be offered the opportunity to take a breath test on a certified breathalyzer or to provide blood and/or urine sample depending on the circumstances.
Refusal to take such tests will result in a suspension of driving privileges. However, a refusal makes it that much more difficult to prosecute a person for DUI. A driver who makes no admissions or statements, refuses to take the standard performance tests, and refuses a roadside PBT and chemical testing in the police station greatly increases his chances that he will be found not guilty. Remember, refusing to take such tests or answer questions should always be done in a respectful and non-confrontational manner.
After arrest for a DUI
Defending a DUI arrest can be a complex and lengthy process, requiring an attorney experienced in DUI defense and familiar with all the local court rules and procedures.
Once an attorney is retained, he or she will meet with you for an office interview to learn the facts surrounding the arrest. During your first court date (arraignment), your attorney will file his appearance and enter a plea of "not guilty" on your behalf. Frequently, an attorney will file the following motions on the first court date: motion for discovery, petition to rescind the summary suspension, motion to quash the arrest and suppress evidence. The judge will set a future court date for these motions, a pre-trial conference or trial date.
The prosecutor must comply with a written discovery motion within a fixed number of days. The prosecution is required to turn over police reports, alcohol influence reports, chemical tests, log and record books, breath operator licenses, videos of your arrest and any statements you may have made to the police. Once all information has been reviewed, your attorney will plan your defense, file any necessary motions and discuss with you your options. In Illinois you have a constitutional right to a trial by jury or if you elect, you may waive a jury trial, and have a judge decide your case.
Illinois statutory law allows one substitution from the judge hearing your case if the motion is made in a timely fashion.
At any trial, either by a judge or a jury, every defendant in a DUI case has the following rights:
1. Plead "not guilty" or persist in any "not guilty" plea previously made
2. An individual is presumed innocent of the charge(s) filed against him
3. Require the prosecution to prove your guilt beyond a reasonable doubt
4. Not to be required to testify against oneself
5. See and hear the prosecution’s witnesses and evidence in open court and cross-examine those witnesses
6. Present evidence or call witnesses (including expert witnesses) of one’s own and have the court require those witnesses to come to court and testify
After reviewing the facts and evidence with your attorney, you may elect to have him negotiate the case in an attempt to reach a favorable disposition, or if you think the prosecution is being unreasonable, you may elect to enter a straight plea in front of the judge. If you elect to proceed with that option, you will waive your right to a trial and the enumerated rights during a trial. More importantly the Judge determines what the sentence will be.
Statutory Summary Suspensions in Illinois
Because the courts have held that driving is a privilege extended by the State of Illinois and not a right, under certain very broad circumstances a police officer may ask a driver to take a chemical test to determine sobriety. [Illinois Vehicle Code, Chapter 625 ILCS 5/11-501.1]
Administrative driver’s license suspensions by the Illinois Secretary of State are automatically imposed where there is a blow of 0.08 or greater, or a refusal to take a breathalyzer. If one is a first time offender, and there was a blood alcohol level of .08 or greater, the suspension is for a period of six months. A refusal results in a one year suspension. A prior refusal within a five-year period will result in the loss of your driver’s license for three years.
The suspension becomes effective 46 days after the "Notice of suspension" is served, which is typically on the date of the arrest. There is little or no relief from this suspension unless a defendant is considered to be a first time offender, and therefore eligible for a Monitoring Device Driver's Permit (MDDP).
Effective January 1, 2009 Judicial Driving Permits (JDP) were abolished and replaced by a court issued Monitoring Device Driver's Permit (MDDP). Every MDDP driver must have a Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicle. A BAIID is designed to measure blood alcohol levels and prevent a vehicle from starting or disabling it if someone has been drinking. The driver has unlimited driving privileges, but only in his own personal vehicle, not commercial vehicles. Those under 18 years of age or those involved in fatal accidents are not eligible for a MDDP.
Any tampering with the device or the presence of alcohol will result in the revocation of driving privileges. Those with a MDDP caught driving another vehicle, or their own car without a BAIID during their summary suspension would be guilty of a Class 4 felony and subject to 30 days of mandatory imprisonment.
Defendants may challenge the statutory suspension at a hearing, but if unsuccessful, the first 30 days of the suspension will continue to be without any driving relief. Summary periods are 6 months for blows in excess of .08, and 12 months for refusals respectively for first time offenders.
All defendants charged with refusing a breathalyzer or having a blood alcohol content greater that .08 may file a Petition to Rescind (that is to undo or take back) the suspension issued by the Secretary of State. In most cases the judge hearing the DUI pretrial will also conduct the Summary Suspension hearing, or a backup judge will hear the case if one is available. Your attorney may also file a Motion to Quash the Arrest and Suppress Evidence, if the facts merit such a motion.
Unfortunately, in Illinois the Summary Suspension hearing is limited by statute to the following grounds:
1. The defendant was not issued a ticket and placed under arrest for DUI.
2. The arresting officer did not have reasonable grounds to believe the driver was driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs.
3. The defendant was not properly warned of the consequences of refusing testing.
4. The defendant did not refuse testing.
5. The test resulted in a blood alcohol concentration of less than .08.
6. The driver was never asked to take a blood alcohol test.
7. The police officer lacked probable cause to effectuate an arrest.
8. The Notice of Statutory Summary Suspension was not properly sworn to.
9. The arrest occurred on private property.
In Illinois it is possible to win the Statutory Summary Suspension and still be convicted of the DUI charge. Further, acquittal of the DUI charges has no effect upon the Statutory Summary Suspension. The statutory summary suspension is civil, not criminal, and governed by the Rules of Civil Procedure.
Exceptions to the 0.08 rule
It is also important to know that a person may still be considered intoxicated with a blood alcohol concentration less than 0.08. Defendants have been convicted in Lake County with a blow of less than 0.05 when other competent evidence of their intoxication is introduced.
If the driver is under twenty-one years of age, he can be suspended for any amount of alcohol while driving a motor vehicle (Zero Tolerance). Also, a suspension will result if a minor is in possession of alcohol or underage consumption, even if such consumption or possession had nothing to do with driving. Further, the minor will have to contest the suspension with the Secretary of State, because judges are forbidden by statute from hearing such cases.
While petty violations of the Illinois Vehicle Code, such as speeding, running a red light, failure to yield, and failure to reduce speed to avoid an accident are punishable by fine only, the Secretary of State assigns points for any conviction reported by the Circuit Clerk of the county where the violation occurred. In addition, out-of-state convictions and local ordinance violations are generally reported to the Illinois Secretary of State and may count against your Illinois driving record.
Once these conviction notices are reported to the Illinois Secretary of State, the Secretary of State has the discretionary authority to suspend one’s Illinois driver’s license for three moving violations within a 12-month period. If the driver is under twenty-one, the Secretary of State has the discretionary authority to suspend his license for 2 moving violations in a 24-month period.
Illinois offers court supervision
Court supervision is unique to Illinois. Most states don’t have it; it is a way of avoiding a conviction. Court supervision is defined as "a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered." [730 ILCS 5-1-21]
Supervision is not available for some offenses- speeding in construction or school zone, passing a loading school bus, and second no-insurance violation. Therefore, only a competent traffic attorney may convince the prosecutor to amend the charge so the client receives court supervision.
Since October 2000, court supervisions have appeared in a separate section of one’s personal driving abstract. For a small fee, a driver can obtain a copy of his personal driving abstract from the Secretary of State. Three (3) convictions for moving violations in 12 months will result in a mandatory suspension. Only two court supervisions are allowed during any 12 month period. The Federal Government and most other States do not recognize court supervision, and treat it as a conviction.
Suspended and revoked license violations
Unlike a petty traffic offense, traffic violations such as driving while license is suspended, revoked, or during a summary suspension; speeding more than 40 mph over the limit; reckless driving; and fleeing and eluding a police officer are serious criminal offenses punishable by 364 days in jail and up to $2,500.00 in fines.
Individuals are often confused about the differences between a suspension, revocation and cancellation of a driver’s license by formal action of the Secretary of State. Simply stated:
Suspension - temporary withdrawal of a person’s license or privilege to operate a motor vehicle on the public highways. The period of time is specifically determined by the Secretary of State.
Revocation - termination of a person’s license or privilege to operate a motor vehicle on the public highways. The termination shall not be subject to renewal or restoration. Application for a new license may be made and acted upon by the Secretary of State at least one year after the date of revocation.
Cancellation - annulment or termination of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license. In some situations the licensee may make application for a new license.
Suspensions for unpaid tickets, bond forfeitures, and emission suspensions can usually be resolved with one or more court appearances and the payment of the requisite fines, court costs, and reinstatement fees. Suspensions or revocations for DUI, driving during a summary suspension, leaving the scene of a personal injury accident, having three or more convictions within a twelve month period, or financial responsibility require considerably more time and effort to obtain reinstatement.
Proper legal representation is critical
Selecting an experienced attorney is the first step towards regaining control of your life. The key to keeping your license or the prompt restoration of your driving privileges is acquiring the services of a highly-qualified criminal attorney.
The Law Offices of Robert W. Brown Jr. in Libertyville, Illinois is devoted to representing the rights of those who have been arrested.
Note: There are literally hundreds of traffic offenses in Illinois and the General Assembly is continually amending existing offenses, adding new ones, or increasing the penalties. Therefore, it is beyond the scope of this website to discuss all of them.
The Illinois Vehicle code, entitled "Vehicles" may be found in Chapter 625 of the Illinois Compiled Statutes. That publication may be found in any public library or on our Web Resources page.
DISCLAIMER: The information contained in this web page is not intended to serve as legal advice or as a substitution for a consultation with a qualified criminal attorney. New laws are frequently passed by the General Assembly and the Appellate Courts of Illinois are constantly issuing opinions interpreting how the law is to be applied, therefore it is imperative that you consult with a legal professional.
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