An arrest for driving under the influence is typically a misdemeanor. However, there are some circumstances under which even a first offense can be a felony.
For review, a misdemeanor is different from a felony in that the maximum sentence for a misdemeanor is less than one year in jail. A felony charge, however, has a sentence of one year or more imprisonment.
Both misdemeanor and felony DUIs are charged under the same statute, 625 ILCS 5/11-501. Regardless of whether it is a misdemeanor or felony, a person’s guilt or innocence is determined by the same sections 11-501(a)(1)-(6). For instance, a person is guilty of driving under the influence if he operate a motor vehicle with an alcohol concentration of 0.08 or more in his blood or breath. That issue determines whether a person is guilty or innocent.
But the question of whether it is a misdemeanor or a felony depends on certain aggravating factors. All felony charges are called aggravated, and they are at a minimum categorized as a Class 4 felony. The sentencing range for a Class 4 felony is 1 to 3 years in the Illinois Department of Corrections, followed by one year of mandatory supervised release (eg, parole). In many cases, the defendant is eligible for probation, but not all the time.
An offense of DUI is enhanced to a felony under the following conditions:
- The person has committed two prior violations of the DUI statute. See 625 ILCS 5/11-501(d)(1)(A). A third DUI offense is a Class 2 felony, which has a potential penalty of 3 to 7 years in the Illinois Department of Corrections.
- The person committed the offense of DUI while driving a school bus with passengers 18 years of age or younger. See 625 ILCS 5/11-501(d)(1)(B).
- The accused committed the violation and was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, and the DUI was a proximate cause of the injuries. See 625 ILCS 5/11-501(d)(1)(C).
- The defendant committed a violation and has previously been convicted of reckless homicide (720 ILCS 5/9-3) and it can be shown that in that prior offense, the person was under the influence. See 625 ILCS 5/11-501(d)(1)(D).
- The defendant committed the DUI while driving in a school zone with a 20 MPH speed limit, and was involved in a motor vehicle accident that resulted in bodily harm to another person, and the DUI was a proximate cause. See 625 ILCS 5/11-501(d)(1(E). Note that a DUI resulting in bodily harm is not a felony unless it is great bodily harm, except in this circumstance, where the accident occurred in a school zone.
- The defendant committed DUI and was involved in a motor vehicle accident, snowmobile accident, all-terrain vehicle accident, or watercraft accident that resulted in the death of another person and the DUI was a proximate cause. See 625 ILCS 5/11-501(d)(1)(F).
- The accused committed DUI during a period in which his driving privileges were suspended or revoked and the cause of the suspension or revocation was prior DUI (625 ILCS 5/11-501), statutory summary suspension (625 ILCS 5/11-501.1), leaving the scene of an accident involving personal injury or death (625 ILCS 5/11-401), or reckless homicide (720 ILCS 5/9-3). See 625 ILCS 5/11-501(d)(1)(G).
- The defendant did not possess a valid driver’s license (625 ILCS 5/6-101). See 625 ILCS 5/11-501(d)(1)(H).
- The defendant was operating a motor vehicle for which there was no liability insurance coverage and he knew or should have known about it. See 625 ILCS 5/11-501(d)(1)(I).
- The defendant was involved in a motor vehicle accident that caused bodily harm to a child under the age of 16 who was a passenger in the vehicle, and DUI was a proximate cause. See 625 ILCS 5/11-501(d)(1)(J).
- The accused committed the offense of DUI for a second time, and during this second offense, he was transporting a passenger under the age of 16. See 625 ILCS 5/11-501(d)(1)(H).
A fourth DUI offense is a non-probationable Class 2 felony. The accused in this case would not be eligible for probation and, if found guilty, would have to serve 3 to 7 years in the penitentiary.
A fifth violation is a non-probationable Class 1 felony, which requires 4 to 15 years in prison.
A sixth violation is a non-probationable Class X felony, with a sentencing range of 6 to 30 years in the Department of Corrections.
A person who is accused of causing a motor vehicle accident resulting in great bodily harm or permanent disability or disfigurement to another, if sentenced to prison, must serve 1 to 12 years.
If a person is charged with DUI after an accident that resulted in death, the sentence must be 3 to 14 years in the Illinois Department of Corrections, except that the judge may sentence the offender to probation upon a showing of exceptional circumstances.
For the accused who is charged with a second offense of DUI while transporting a passenger under the age of 16, the offense is a Class 2 felony (3-7 years) and probation as possible.
Finally, if the defendant is charged with DUI and he is previously been convicted of reckless homicide, he faces a Class 3 felony which is non-probationable. Thus, the minimum sentences 2 to 5 years in the state penitentiary.
It goes without saying that, since it is a felony, the accused cannot receive supervision. Thus, even a first offense of driving under the influence which is a felony will result in a conviction that causes the Secretary of State to revoke that person’s driving privileges.
If the offender is sentenced to prison, there are certain rules with early release that apply in some cases but not others. Some defendants who are convicted of aggravated DUI are eligible for early release but others are not.