The breathalyzer test that is part of nearly all driving under the influence arrests serves as the State’s best evidence that the driver is guilty. A result of 0.08 or more is per se a violation of 625 ILCS 5/11-501.
But the breath test does more. A high breath alcohol concentration can subject the defendant to additional penalties and a harsher sentence if found guilty.
Illinois DUI law provides that a defendant who is found guilty and has an alcohol concentration in his blood or breath of 0.16 or greater must be sentenced according to mandatory minimums. Basically, the rule in Illinois is that a breathalyzer result that is double the legal limit causes additional penalties.
A mandatory minimum, as the term suggests, is a minimum sentence that is mandatory in all cases. The judge has no authority to deviate from the minimum. While the court can always sentence the defendant to something worse the minimum, it can never be less than the minimum.
For a first offense of DUI in Illinois, an alcohol concentration of 0.16 or more requires a sentence of 100 community service hours and a fine of $500. See 625 ILCS 5/11-501(c)(4). The community service hours would have to be performed during the course of a sentence, subject to the local court rules. In Cook County, those hours may have to be served by participating in the Sheriff’s Work Alternative Program (SWAP).
The fine of $500 is paid in addition to any other fines and court costs. All first offenders must pay a DUI technology fee of $500, so the total fine would be $1,000. Court costs are set by the county board, and every county is different.
If a person is found guilty of a second DUI with a blood or breath alcohol concentration of 0.16, then the mandatory minimum sentence is two days jail and a fine of $1,250. See 625 ILCS 5/11-501(c)(5). The two days jail is not subject to reduction. That is, the credits for day-for-day or good behavior allowances that ordinarily reduce a jail sentence by 50% under the County Jail Good Behavior Allowance Act are not applicable. The defendant must serve all two days. The Act can be read at 730 ILCS 130/1.
On a third violation of 625 ILCS 5/11-501, if the defendant’s blood or breath alcohol concentration was 0.16 or higher, then the court must sentence the defendant to a minimum of 90 days in jail and a fine of $2,500. The defendant would not be eligible for early release. The terms used to describe early release from county jail include “good time” credits and “day-for-day” credits. These are not applicable to a mandatory minimum sentence.
A third offense of DUI is a Class 2 felony in Illinois. The sentence can be 3-7 years in the Department of Corrections (prison) and a fine of $25,000. The defendant would be eligible for probation.
A fourth, fifth, or sixth violation of the DUI statute has no mandatory minimum jail sentence for a BAC of 0.16 because in each of these situations, the offense is a non-probationable felony. That means the court could not sentence the defendant to probation even if it wanted to. A fourth DUI is non-probationable Class 2 felony with mandatory DOC time of 3-7 years. A fifth is a Class 1 felony with 4-15 years, while a sixth offense is a Class x felony with 6-30 years.
When the offense reaches the fourth or subsequent DUI, the blood or breath alcohol concentration is usually not an issue because the defendant refused the test. Nonetheless, even if there was a chemical test result, the court is generally more concerned with the primary issue: will the defendant be sentenced to DOC?
Last, there are ways in which a defendant can escape the mandatory minimum sentence for a BAC of 0.16 or higher. Even if the test result is considered admissible against the defendant, it is possible to avoid the mandatory minimum sentence during sentencing. This requires the assistance of an attorney trained in DUI defense.
Because changes in the law have made DUI a more serious offense, it is very important to retain counsel who concentrates in DUI.