Examine the numbers of arrests for driving under the influence in Illinois, and you can see that on average, the driver takes a breathalyzer test. When the driver takes a breathalyzer test, and fails, he is charged with violating 625 ILCS 5/11-501(a)(1) for having an alcohol concentration is breath of 0.08 or higher. Despite the fact that most drivers submit to chemical testing (the breathalyzer), this is actually not the most common charge for driving under the influence.
Instead, the most common charge for DUI is based on 625 ILCS 5/11-501(a)(2). This statue from the vehicle code says that a person is guilty of DUI if he is “under the influence of alcohol.” The law makes no mention of the legal limit, 0.08 percent. The point of this law is that the driver is guilty because he was impaired or intoxicated by alcohol.
This charge is the most common DUI charge in Illinois because police officers are trained to write a citation for this charge in every DUI case. The logic is this: every arrest for DUI based on probable cause. If the officer makes observations that allow him to conclude the suspect is impaired, there is probable cause to arrest for driving under the influence of alcohol.
Police officers are trained to make an arrest for DUI if they observe slurred speech, bloodshot or glassy eyes, poor balance, stumbling, etc. In addition, if the driver submits to field sobriety testing, and fails, the police have further evidence (eg, probable cause) to justify their decision to make an arrest for DUI.
And so, in every case of DUI, the police officer believes the suspect is impaired. The police officer is trained to write tickets for 11-501(a)(2) in every case.
If the driver submits to chemical testing such as the breathalyzer, the police officer will write out an additional charge for 11-501(a)(1). But if the driver uses to blow into the breathalyzer machine, then the police still have a case against the driver based on 11-501(a)(2). In this respect, 11-501(a)(2) is like a fallback position for the prosecution.
If you have been arrested for DUI, you should look at your ticket numbers. Most police officers are trained to write a ticket for 11-501(a)(2) first. The officer should always write citations starting with the lowest number the first. Thus, the charge for 11-501(a)(2) should be written on the lowest ticket number.
When this happens, this reaffirms that the 11-501(a)(2) charge is the default or backup charge. A ticket for 11-501(a)(1) is written only if the suspect takes the breath test and fails. It comes later in time and should be written on a higher ticket number.
In prosecution for 11-501(a)(2), the State must prove beyond a reasonable doubt that the defendant was generally “under the influence of alcohol.” Because there is no breathalyzer test, the evidence is based on the police officer’s opinion that the driver was impaired. The prosecutor would have to establish that the police officer was trained to identify intoxicated motorists and that based on his professional training and expertise, the defendant was under the influence of alcohol.
The role of the defense attorney would be to impeach the testimony of the police officer. The lawyer should show that the police officer’s opinion that the driver was under the influence is faulty.
In my opinion, almost every DUI case charged on 11-501(a)(2) should go to trial. The reason is, there is no scientific chemical test to prove that the defendant was in fact, intoxicated. And so, there is almost always doubt (and this may be reasonable doubt).
In my law practice, I probably answer ready for trial on 90% of DUI cases where there is no breathalyzer test. That being said, every case is different. If you need a lawyer who is willing to go to trial and who has been able to win DUIs, you should call me.