We return in 2012 for an update on the law against driving under the influence in the state of Illinois. While crimes such as domestic battery, theft, and murder have not changed in decades, the laws on DUI are changing every year.
The statute that prohibits driving under the influence of alcohol or drugs remains in the Illinois Vehicle Code at section 625 ILCS 5/11-501. Check your traffic ticket and you should see the citation. Or, if you were arrested in DuPage County, the statutory section will be indicated on the complaint (printed on standard 8 and 1/2 by 11 inch paper).
There are some cases where the citation will be different. For instance, Illinois has a law called Home Rule which allows municipalities to prosecute offenders for crimes that occur in their jurisdiction rather than the county State’s Attorney. When this occurs, the statute cited is a municipal ordinance. Usually these municipalities just cut and paste the vehicle code offense onto their own books. The 11-501 remains the same, but often the numbers (chapters) coming before it are different. Regardless, this is a DUI just as much as if it were written in the Illinois Vehicle Code.
Next, the offense of DUI has two components: a criminal penalty and also a civil penalty for either failing or refusing a chemical test. Each has its own important issues.
First, the criminal penalty is up to one year in the county jail and a maximum fine of $2,500. A first offense of DUI, provided there are no aggravating factors such as an injury or fatal accident, is a Class A misdemeanor. This means that in comparison with other crimes, DUI is classified as serious as resisting arrest, battery, etc.
DUI is not a felony, and therefore if you were sentenced to jail, that time would be served at the local county jail facility, not in the state prison system (Illinois Department of Corrections). And so, there is no parole after a jail term for DUI.
The maximum fine of $2,500 belies the expense of court costs. The combined fine and court costs can be very high. The court costs are determined by two parties, the state legislature and the county board. The legislature has passed a multitude of laws that require a $5 assessment to support this, and $10 fee to support that, etc. It adds up quickly. The county board sets fees for appearing in their Circuit Court. The county board usually collects a fee just for being prosecuted by their State’s Attorney. This is to say that you are paying for the privilege of being prosecuted.
The civil penalty is a statutory summary suspension. You are (or should have been) served with a written notice by the arresting officer on the date of arrest. This notice is entitled Notice of Summary Suspension/Revocation, and it appears on 8 and 1/2 by 11 inch carbon copy paper. If the police officer followed procedure, he should have taken your driver’s license and told you that the notice will serve as your substitute while the case is pending.
The notice informs you that your driver’s license will be suspended in 46 days. Basically, your license remains valid for 1 and 1/2 months (e.g., 45 days), but the suspension goes into effect at 12:01 a.m. the next day.
While some people can have their driving privileges revoked, as in the case of an accident involving death, almost everyone on the first DUI receives a suspension. The suspension is called a statutory summary suspension. The name teaches volumes. The suspension is statutory because it is mandated by statute, and summary because it occurs summarily, without the police officer having to appear in court. The fact that you are presumed innocent and yet to be proven guilty in a court of law means nothing. Your license will still be suspended.
The length of the suspension depends on your failure or refusal of chemical testing. Chemical testing is a term that describes breathalyzer testing as well as blood draws and urine samples. By far, the most common chemical test used in a DUI arrest is the breathalyzer test. Blood tests are infrequent, and urine tests (called urinalysis) are probably 1 in 25 cases.
A person fails the breathalyzer by blowing a number 0.08 or higher. The legal limit is not 0.08, it is actually 0.079. Anything above 0.079 is considered to be DUI. This failure causes the Secretary of State to impose a driver’s license suspension called a statutory summary suspension.
If a person refuses the breathalyzer, then the Secretary also imposes a driver’s license suspension.
The difference is that you will suffer a greater civil penalty for refusing the breathalyzer than for submitting to it and failing. Basically, the law is trying to get you to submit to the breath test because the result can be used to prove that you are guilty of DUI.
Many people are confused by the administration of two breath tests: one on the road during the arrest and another in the police station. The roadside breathalyzer test is called a Preliminary Breath Test (PBT), and the one at the station is the actual breathalyzer. The breath test at the station is what causes the summary suspension, not the PBT.
This articles assumes that you have not been arrested for DUI before. And so, blowing 0.08 on the breathalyzer results in a 6-month summary suspension. Refusing the breathalyzer results in a 12-month suspension. The Notice of Summary Suspension/Revocation indicates the same on the back side where it defines a ‘first offender’ as one who has not had a DUI or summary suspension in the prior 5 years. This term, ‘first offender’, is the cause of misapprehension by many who have a second DUI, but if this is your first time, you need not concern yourself with that issue.
You should be eligible for a special driving permit during the summary suspension. The permit is called a Monitoring Device Driving Permit (MDDP), and it allows you to drive during the summary suspension with a breathalyzer to monitor your breath alcohol concentration. State law mandated the use of a monitoring device in 2009. The monitoring device is called a Breath Alcohol Ignition Interlock Device, or BAIID for short. As long as your BAC is less than 0.05, you can drive the vehicle.
But the MDDP does not allow you to drive during the first 30 days of the summary suspension. Thus it is available for use on the 31st day of the suspension, but no sooner.
To be clear, this article addresses the penalties for DUI in 2012. It does not mention the action you can take to defend yourself in court.
For example, you have a right to challenge the summary suspension. The suspension goes into effect in 46 days, but from the moment you challenge the suspension, you have a right to be heard by a judge within 30 days, which comes before the suspension takes effect. This process involves filing a petition to rescind statutory summary suspension and is covered by other articles in the site.
Additionally, when it comes to the DUI, you are protected by the Constitution. The prosecution has the burden of proof. You do not have to prove anything, because your innocence is presumed. In fact, the prosecution has to overcome that presumption of innocence with proof beyond a reasonable doubt. You do not have to testify, and if you do not, your silence cannot be used against you. These due process protections make it difficult for the State to prove you guilty, and this is why my preference is to try to win the case at trial.
In the months to come, I will be following up with the specific penalties imposed as mandatory minimum penalties for DUI. These mandatory minimums deserve their own article.