Penalties for driving under the influence with child passenger

by Sami Azhari on November 6, 2010

Child Passenger | Illinois DUI | Enhanced Sentence | 6 Months Jail

The laws against driving under the influence in Illinois have enhanced penalties where the defendant was transporting a child passenger.

The DUI statute in Illinois is 625 ILCS 5/11-501. A first offense is a Class A misdemeanor offense. The sentencing range is up to one year in jail and a possible fine of $2,500.

But where the driver has a passenger who was younger than 16 years old, the sentence increases under 625 ILCS 5/11-501(c)(3). A minor who is less than 16 years of age is considered a child passenger. Regardless of any parental relationship or family relation, if a passenger was 15 years old or younger, the sentence is enhanced.

A first offense of DUI with a child passenger has a mandatory fine of $1,000. The fine is payable in addition to any court costs imposed. The judge has no authority to reduce the fine, even where mitigating circumstances or financial inability to pay are present.

The most severe consequence of such a case is that the defendant must serve a mandatory minimum of 6 months jail time and 25 days of community service.

The jail sentence of 6 months is a mandatory minimum, which means that it is the minimum sentence that must be imposed. The court cannot sentence the defendant to anything less than 6 months jail.

If the judge sentences the defendant to jail, then the defendant is not eligible for a sentence of supervision. Supervision is not a conviction and, as a result, does not cause the Secretary of State to revoke the defendant’s driver’s license.

Under supervision, the court defers entering a judgment against the defendant for a period of time in which the court supervises him. If the defendant complies with supervision, then the charge will be dismissed without a conviction. See 730 ILCS 5/5‑6‑3.1.

The Secretary of State will revoke a person’s driving privileges for a conviction of DUI pursuant to 625 ILCS 5/6-205(a)(2). Because supervision is not a conviction, first-time offenders who receive supervision are able to keep their licenses.

But where the sentence is jail, then supervision cannot be applied, and the court has to sentence the defendant to a conviction.

Thus, a first offense of DUI can revoke that person’s license where he or she had a child passenger.

On a first offense, if an accident results and the child passenger suffers bodily harm, then the offense is a Class 4 felony. The sentence is 1-3 years in prison (Department of Corrections). The minimum fine is $2,500 and maximum is $25,000. Probation is possible. Bodily harm is defined as almost any injury, and permanent damage does not have to result.

On a second offense, if the defendant was driving with a passenger younger than 16 years of age, then the offense is a Class 2 felony with a sentencing range of 3-7 years prison. Probation is possible, however.

Furthermore, if an accident occurs and the passenger is hurt, then the minimum fine is $5,000 and the maximum is $25,000.

Frequently, where a person is arrested for DUI and a child was in the car, the police officer will also charge the driver with child endangerment. If the officer failed to do so, the State’s Attorney who reviews the case will usually add the charge later in court.  The statute for endangering the life or health of a child is 720 ILCS 5/12-21.6, and it provides the following:

(a) It is unlawful for any person to willfully cause or permit the life or health of a child under the age of 18 to be endangered or to willfully cause or permit a child to be placed in circumstances that endanger the child’s life or health…

Note the age difference for DUI and child endangerment. For the enhanced penalty of DUI to apply, the passenger has to be 15 or younger, but for child endangerment, the age range is 17 and younger. So, a passenger who is 16 or 17 can result in child endangerment, but not the enhanced penalty for DUI.

It is important to know that all these penalties can be avoided with the assistance of a knowledgeable attorney. While the State’s Attorney is under no obligation to reduce the charge, or amend the charge to avoid the child passenger or child endangerment penalties, counsel may be able to achieve a good result for the client with effective negotiation or trial.

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