Every arrest for driving under the influence has two consequences: first, the suspension of driving privileges, and second, the criminal offense of DUI. The driver’s license suspension operates on a time table, whereas the criminal offense does not.
A person who is arrested for DUI will have his driving privileges suspended pursuant to a statutory summary suspension. As the legal term implies, the suspension is statutory because it is based on a statute, and summary because it occurs summarily, or without a hearing. The suspension is automatic.
The suspension will take effect 46 days after the date of the arrest in most cases. And so, the person’s license remains valid for 45 days. The police officer will provide the driver with a Notice of Summary Suspension. This is a form on carbon paper that is filled out by hand.
At the beginning of the first type-written paragraph, the Notice of Summary Suspension will indicate that the suspension will be effective on the 46th day following the date of notice. When the police officer hands the Notice of Summary Suspension to the driver at the conclusion of the arrest, this is considered notice, and the 46-day period begins to run.
The notice will indicate whether the summary suspension is based on a refusal of chemical testing or results indicating an alcohol concentration of 0.08 or more in the person’s blood or breath, intoxicating compounds, or the presence of cannabis, controlled substances, or methamphetamine in the person’s blood, breath, or urine.
If the person is a first offender, which is someone with no prior DUIs or summary suspensions within the last 5 years, a refusal causes a 12 month suspension. A result of 0.08 or more causes a 6-month suspension. If the person is not a first offender because he had a DUI or summary suspension in the last 5 years, then the suspension is 12 months for 0.08 or higher, and 36 months for refusing.
Procedurally, the officer will mail a copy of the Notice of Summary Suspension to the Secretary of State, who will initiate the suspension, and also the original to the Circuit Court.
The effective date of the suspension is more complicated if the driver submitted to blood or urine testing. In these instances, the effective date of the suspension is delayed.
A police officer can request a urine sample or blood draw either as the only chemical test, or as a supplement to a breathalyzer. The police officer may take the urine sample at the police station, but blood draws are almost always performed at a hospital under the direction or a physician, nurse, or phlebotomist who is trained to draw blood.
The results of a urine sample or blood draw will not be immediately known. The urine sample will be mailed to the crime laboratory for analysis. Hence, it is called a urinalysis. The blood sample will also be mailed. Each of these tests is shipped in a custom-manufactured DUI packet. The testing process is delayed by a backlog of other evidence in need of testing. All forensic evidence is tested at these labs, including fingerprints, DNA, firearm casings, etc. The process could take weeks or even months.
In some instances, where the driver was taken to the hospital for emergency treatment, the hospital will draw blood in the course of medical treatment. This blood sample will be tested per hospital protocol, and if the results indicate alcohol at 0.08 or more, or the presence of drugs, this information will be disclosed to the police. This information is usually available immediately because the treating doctor needs this information, but may not be related to the police for days, weeks, or even months.
And therein lies the problem with summary suspensions based on blood or urine tests. The effective date of the suspension is determined by when the police receive the positive result.
Even if the driver admits the blood or urine test will be positive, the officer cannot legally issue the Notice of Summary Suspension until the results are back.
When the results return, the police officer will complete the Notice of Summary Suspension and mail a copy to the Secretary of State and to the defendant. The 46-day period begins to run on the date it is mailed. Theoretically, this could occur at any time.
The Secretary of State will confirm the suspension in writing at the address on file for the driver. If the driver does not have his current address on file with the Secretary of State, then arguably he may not learn about the suspension until it is too late.
The primary consideration with blood and urine testing is how it effects the criminal case.
For example, if the blood or urine test result will not be known for months, then the defendant can demand trial pursuant to the speedy trial statute, 725 ILCS 5/103-5. Without the test results, the prosecution may not be able to prove the defendant guilty of DUI.
In all cases, the Notice of Summary Suspension gives the defendant a right to request a hearing on the summary suspension. Once the request for hearing is filed, the defendant is entitled to a hearing in 30 days, which comes before day 46.
Anyone arrested for DUI should pursue the hearing at the earliest possible opportunity. The author of this article makes it a practice to file the petition to rescind summary suspension on the day he is retained by the client.