The Illinois Secretary of State releases a publication every year that provides statistics about arrests for driving under the influence. The annual DUI Fact Book says that the number of arrests for drunk driving each year in our state is just under 50,000. To be clear, this is the number of arrests, and so it says nothing as to whether these people are convicted.

In addition, the figure includes both misdemeanor and felony charges for DUI. While the Secretary of State does not provide that specific number, my experience tells me that the ratio of misdemeanor charges compared to felonies is about 4 to 1.

The number of people arrested for DUI in Illinois has been decreasing for the last several years, mostly due to the economic recession. There are two factors at play with regard to the reduced number of drunk driving arrests. First, fewer people are going to bars. When money is in short supply, some people will decide to stay at home. Also, there are fewer police officers patrolling the streets. Governments at the municipal and county level have been reducing their budgets, and officers have been laid off.

One of the most staggering statistics from the DUI Fact Book is that 92 percent of all drivers who are arrested lose their driving privileges. This is a very high number, but we should take a closer look.

There are many factors that explain why 92 percent of all people who are charged with DUI lose their licenses. First, all people, rich and poor, get arrested for DUI. The law provides that a person who does not have the finances to hire an attorney is guaranteed a court appointed lawyer. The court appointed lawyer comes from the public defender. The public defender is provided by the county, but their representation is limited to the criminal case. This is because a defendant is entitled to a court appointed attorney only as to criminal charges. This 6th Amendment to the Constitution guarantees the right to counsel in criminal cases. The statutory summary suspension of a person’s license, however, is considered to be a civil matter. The public defender is not provided as to the summary suspension. Therefore, for a very large number of DUI defendants, no one is challenging the summary suspension.

Due to the recent economic recession, the number of defendants who qualify for the services of the public defender is at an all-time high. Basically, no one has any money to hire a lawyer. Therefore, judges are appointing the public defender in more cases than ever before. As a result, more people are not challenging the summary suspension than ever before.

The sad truth is that the appointment of the public defender can have many unintended consequences. Often, a person who gets a summary suspension believes it is necessary to drive for work or for family. If that person is pulled over driving during the summary suspension, the penalty is 10 days jail and his license will be re-suspended. Unfortunately, one can see many public defender clients in court with repeated charges of driving while license suspended. On each case, that person’s license is re-suspended. The consequence is some of these people can never get out of the criminal justice system. They cannot hold down a job because they have no license, and because they are constantly serving jail sentences for driving while suspended.

In every case, it is critical for the defendant to have a private attorney. While there are many public defenders who are willing and able to defend their clients, the problem is the law does not allow them to defend their clients with regard to the summary suspension. The suspension of driving privileges is equally as important to the misdemeanor charge, in my opinion. In some cases, it is more important.

Look at it this way: a jail sentence for DUI is served and then it is over. But a summary suspension can keep getting extended over and over again.

The 92 percent who lose their driving privileges after a DUI arrest includes those defendants who have their privileges revoked by the Secretary of State for a conviction for driving under the influence. Recall that the law in Illinois says that a person who has a previous supervision for DUI or reckless driving is in eligible for supervision on a subsequent arrest. The minimum sentence for people in this category would be a conviction. A conviction imposed by a court causes the Secretary of State to revoke that person’s license.

The economic recession has made the payment of fines and court costs a problem for people who are not accustomed to financial strain. Many times, a person will fail to pay his fine or court costs and the court will take action against him by revoking supervision. Once supervision is revoked, a conviction must be entered against that person and a revoked license will follow.

The Illinois Secretary of State recently published its annual DUI Fact Book. The DUI Fact Book for 2012 is available for download here.

Most of the information provided by the Secretary of State remains unchanged. The reason is rather few laws were passed during the last legislative session that will go into effect in the year 2012.

For example, there are only two changes to the DUI statute for 2012:

First, state lawmakers have added two additional people to the list of who is qualified to do a blood sample. Under an amendment to the DUI statute, a physician’s assistant (PA) is now qualified to draw blood for purposes of DUI testing, as well as a licensed advanced practice nurse (LAPN). This change came from House Bill 1702, which was effective August 19, 2011. This bill amended Sections 1-106.1, 11-501.2, 11-501.6, and 11-501.8 of the Illinois vehicle code.

Second, state lawmakers did not so much change the law as they clarified it. It has been the law for at least one year that a person can have his driving privileges revoked for refusing chemical testing after an accident in which personal injury or death occurs. However, the legislature thought that there was an ambiguity in the statute which did not require an arresting officer to request such a chemical test. It was discretionary.

Because of this, the lawmakers passed a bill that requires the arresting officer to make that request wherever he has probable cause to believe the person involved in such an accident may be under the influence of alcohol or drugs. The new law was passed under House Bill 1241, and became effective August 22, 2011. This law amended Sections 11-501.2 and 11-501.6 of the Illinois vehicle code.

There are no additional new statutes concerning drunk driving in Illinois for 2012. But the year is young.

The Associated Press interviewed me recently on new legislation in Springfield that would change parts of the vehicle code. Read the AP story from March 10, 2012.

There is an important lesson about DUI laws in the article.

Representative Jerry Costello, D-Smithton, introduced House Bill 5099 to make it illegal to use a cell phone while operating a motor vehicle within 500 feet of an accident. The new law would also prohibit using a cell phone for photos or video while driving anywhere, anytime.

The problem with the new bill is that apparently it does more than its sponsor had intended.

Reporter Shannon McFarland deserves credit for discovering that the law, because of the language used, would have unintended consequences.

The law would amend 625 ILCS 5/12-610.1 banning cell phone use near the scene of an accident, and 625 ILCS 5/12-610.2. In Section 12-610.2, the law would ban using a cell phone for pictures or video. The lawmaker thought this ban would only be in effect near accidents, but the language used makes it apply at all times. And so, a person could not use a cell phone to take pictures or photos at an intersection to document a crime, accident, or civil rights violation.

This occurrence is all too common in the State House and Senate, where new laws are added to the vehicle code in a random, disorganized way.

DUI laws are no different. The last overhaul of Illinois DUI laws was in 2009. That year, the DUI statute, 625 ILCS 5/11-501, was amended no less than five times for the following issues:

• Class X felony for 6th offense.
• Class 1 felony for 5th offense.
• Mandatory minimum penalties for 0.16 alcohol concentration in blood or breath.
• Mandatory minimum penalties for 2nd offense.
• Class 2 felony for 3rd offense.

In 2009, the vehicle code was printed with 5 different versions of 11-501, and it was not clear which applied.

This may seem like no big deal, but the Illinois Appellate Court disagrees.

In People v. Maldonado, 932 N.E.2d 1038, the defendant was found guilty of his 6th offense of DUI, and the court of appeals ruled that the legislature created a conflict in the law between Public Acts 94-114 and 94-116. One amendment said the defendant should be sentenced as a Class X felony offender (6-30 years prison) while the other said he should be sentenced as a Class 1 felony offender (4-15 years prison).

The rule of lenity says that the court must, as a matter of due process, interpret statutes in a way that lenient towards the defendant. In this case, the court reduced the defendant’s sentence because the more lenient interpretation required a sentence for a Class 1 felony.

And so, while lawmakers were in a contest to see who could be toughest on DUI offenders, their lack of planning caused the very person they were targeting, a 6-time DUI offender, to get his penalty reduced.

The takeaway here is that the law should not be arbitrary or disorganized. More than 80,000 people are arrested for driving under the influence in Illinois each year. In the words of a judge I appeared before recently,

These are people’s lives we are dealing with.

The last thing we need is to pass laws with unintended consequences.

An arrest for driving under the influence in Illinois is recorded, in most respects, for all time. This is a distressing fact for someone who has never been arrested before. One bad decision can make for a lifetime of regret.

But it does not have to be that way.

The record of a DUI arrest does not have to haunt a person for life. While it may be difficult to clear the record of a drunk driving arrest, it is possible. But to clear a record of DUI, it is first necessary to understand what the record is, where it is, and how it got there.

The record begins with a statutory summary suspension.

On arrest, the motorist is served with a notice of summary suspension (which appears on paper as, “NOTICE OF SUMMARY SUSPENSION/REVOCATION”). Summary suspension is the term that describes the loss of driving privileges for refusing a breathalyzer, or blowing over the legal limit (0.08).

On the bottom of the notice, in red, capital letters are the following words: “POLICE OFFICER – GIVE TO MOTORIST.” The copy that is provided to the driver is a carbon copy. Another carbon copy is mailed to the Secretary of State in Springfield. That copy says, “POLICE OFFICER – SEND TO SECRETARY OF STATE.” When it is received, the Secretary of State then suspends that person’s license after 45 days have passed.

The Secretary’s action against the driver’s license is recorded on that person’s driving record. Illinois driver’s records are called abstracts. At the present time, they cost $12, and can be purchased at almost any Secretary of State facility.

The record of an arrest for driving under the influence on a driver’s abstract has two parts: the summary suspension and the misdemeanor offense. The two are not related. A person can be arrested for DUI and not get suspended, such as where he blows under 0.08 on the breathalyzer. DUIs based on 0.079 breath tests happen from time to time.

Or a person can be suspended for a 0.08 breathalyzer yet win the case at trial. In this instance, the driver’s abstract would show a summary suspension but no DUI.

The statutory summary suspension will appear on the arrestee’s driving record permanently. Each driver in Illinois has a court purposes abstract which shows information such as this to court personnel such as law enforcement officers, prosecutors, defense attorneys, and judges.

While some supervisions for moving violations are removed administratively by the Secretary of State after four years, a summary suspension is not removed. It never disappears from an abstract. This is a permanent record.

That being said, court purposes abstracts generally are not available to anyone but court personnel and the driver himself. It is not a public record.

The second part of a DUI record relates to the Illinois State Police. Regardless of which police department the officer who arrested the driver was from, the State Police are a party to every arrest for driving under the influence in Illinois.

The law says that every law enforcement agency in the state is required to report arrests to the State Police. The Illinois State Police are the record keepers for all criminal charges filed in the state–everything from DUI to 1st degree murder. These records are maintained pursuant to the Criminal Identification Act, 20 ILCS 2630/1.

The State Police organization has a department called the Bureau of Identification. The department is located on Chicago street in downtown Joliet, to the southwest of Chicago.

The Bureau maintains computer records on every person who has been arrested for a crime in Illinois. This information is disseminated nationwide.

Each person who is arrested has, in fact, a criminal record before he or she ever steps foot inside a courthouse. Regardless of the presumption of innocence, a person who is arrested in Illinois gets a criminal record.

The process begins with a booking photo and fingerprinting, and recording of demographic data (gender, race, identifiable scars, tattoos, or marks, etc). The police officer who does the booking will provide the arrestee’s profile to the State Police. Some departments use old-fashioned ink to print the suspect, while others are equipped with new technology that sends the information over the internet without using ink. This is called Live Scan technology. For police departments with Live Scan technology, the criminal record is generated instantaneously.

The statute that requires the local law enforcement agency to transmit arrest records is 20 ILCS 2630/5(a). It provides the following:

All policing bodies of this State shall furnish to the Department, daily, in the form and detail the Department requires, fingerprints and descriptions of all persons who are arrested on charges of violating any penal statute of this State for offenses that are classified as felonies and Class A or B misdemeanors and of all minors of the age of 10 and over who have been arrested for an offense which would be a felony if committed by an adult, and may forward such fingerprints and descriptions for minors arrested for Class A or B misdemeanors. Moving or nonmoving traffic violations under the Illinois Vehicle Code shall not be reported except for violations of Chapter 4, Section 11-204.1, or Section 11-501 of that Code.

See id.

The statute says that moving violations under the vehicle code are not supposed to be reported However, violations of 625 ILCS 5/11-501, the DUI statute, must be reported.

This record has the potential to be permanent. But it does not have to be.

The law provides for expunging the record. Expungement happens when the police department that made the arrest, the prosecutor, State Police, and court all destroy the records of the arrest and criminal charge(s). Technically, the court does not destroy the record, but it does obliterate the person’s name from the index and place the court file under seal (so that it is non-public).

The expungement process is made possible by the very same law that mandates reporting these arrests to the State Police: the Criminal Identification Act.

Section 2630/5.2 allows someone who was arrested and charged with DUI to have the record expunged. But, expungement may occur only under certain conditions: the charges were dismissed or the defendant was found not guilty.

Illinois law does not allow for a DUI to be expunged under any other circumstances. The only other charges treated this way are felonies. Neither supervisions nor convictions for driving under the influence can be expunged.

And so, the takeaway from this article is this: find a lawyer who gives you the best possible chance of getting the charges dismissed or a not guilty verdict.

A person who is arrested for driving under the influence is confronted with two problems. First, he faces criminal penalties imposed by a court of law. At the present time, a first offense of DUI is categorized as a Class A misdemeanor offense. The potential penalties include up to one year in jail and a maximum fine of $2,500.

Second, a DUI offender faces civil penalties. A case in which the offender refused or failed chemical testing (such as the breathalyzer) will result in an administrative penalty imposed by the Secretary of State. A person will receive a statutory summary suspension of his driver’s license that goes into effect after 45 days.

But most important, there is the possibility that the offender can have his driving privileges revoked. This is the ultimate penalty for DUI.

Defense attorneys and prosecutors will argue about which penalties are the most severe. Opinions will differ on whether jail or community service is more difficult. My opinion is that a revoked license is the penalty with the most impact.

Generally, a person cannot function without a driver’s license. In the state of Illinois, a person who does not have the right to drive will suffer economic hardship. It will be nearly impossible to obtain gainful employment and support one’s family. For example, it will be impossible to transport family members to and from medical care, or transport children to and from school. The loss of driving privileges will affect everyone in the household.

Perhaps the only exception is where the person lives in downtown Chicago, which has adequate public transportation. But living and raising a family in Chicago is just not financially feasible for many people.

Without question, the ultimate penalty for driving under the influence is a revoked license.

And a revoked license can happen on the first offense.

The law that allows the Secretary of State to revoke an individual’s driving privileges is the following:

Except as provided in this Section, the Secretary of State shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the driver’s conviction of any of the following offenses:

Violation of Section 11-501 of this Code or a similar provision of a local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof.

625 ILCS 5/6-205(a)(2).

The Secretary of State is required to revoke the driving privileges of any person who is convicted of DUI. There is no way to get around this law. The only way to avoid a revoked license is to avoid a conviction.

I try to refrain from expressing my opinion on these cases in my articles. But this is one instance in which it is appropriate.

My opinion is that a lawyer who represents a client should regard the DUI as though it is just as serious as any felony. In a felony case, the client could go to prison.

In a DUI case, the client could have his driver’s license revoked. I am convinced that, in a way, a revoked license is a more serious issue than a prison sentence.

The reason is, a prison sentence will last for a definite period of time. Except in cases of a natural life sentence, every prison sentence has an ending. At some point, the client gets paroled and goes home.

A revoked license, by comparison, has no ending. While it is true that a revoked license is supposed to last for one year, the truth is that it can last indefinitely. A revoked license will last until that person goes before the Secretary of State Department of Administrative Hearings. Revoked driver must undergo a formal hearing and prove by clear and convincing evidence that he should be reinstated.

Click here to download the application for hearing.

It is reported that 80% of people who apply for reinstatement after revocation for DUI are denied on the first attempt.

This is the reason why every DUI case should be regarded as a felony, and treated with as much attention.

State lawmakers changed the Illinois Vehicle Code for 2012 to regulate how municipalities tow vehicles after an arrest for driving under the influence. The police practice of towing a vehicle after a DUI arrest has been generally unregulated by state law until now. In the past, each city had its own procedures for towing, the imposition of fees, and administrative hearings to contest the fees. Basically, it was a game with no rules except the city would always win.

The new law is found at 625 ILCS 5/11-208.7. The statute establishes all the reasons why a vehicle may be towed, such as where it was used in the commission of a criminal offense. Additionally, the statute provides the minimum requirements for notifying the vehicle’s owner in cases where someone other than the owner was driving the vehicle and was arrested for DUI. And it provides the minimum requirements of due process where a person wants to contest the impoundment and fees.

One of the requirements is that the hearing officer must be a licensed attorney with at least three years experience. This is a much-needed requirement. I represented a client once in an administrative hearing with a village that towed my client’s vehicle after a DUI. The hearing officer who presided over the hearing was none other than the town mayor, who just argued with me as to why his village should be able to keep my client’s money.

The new statute provides a method for appealing an adverse ruling, too.

But not all parts of the new law favor the vehicle’s owner. The police are required only to make a “reasonable” attempt to notify the owner, and what is “reasonable” is undefined. Hypothetically, the owner may never be aware of the impoundment and lose the vehicle.

The statute provides a strict timeline in which the vehicle must be retrieved otherwise it is forfeited to the municipality. The law says that the owner must retrieve the vehicle prior to 35 days:

Vehicles not retrieved from the towing facility or storage facility within 35 days after the administrative hearing officer issues a written decision shall be deemed abandoned and disposed of in accordance with the provisions of Article II of Chapter 4 of this Code.

625 ILCS 5/11-208.7(h).

And the last section of the statute adds a penalty that did not exist before. In cases where the vehicle is towed and stored in impound for a long period of time, the towing and storage fees can be several thousand dollars. Often, these fees are greater than the value of the vehicle, and so the owner decides to leave it.

But the new statute says that even where the person has given up the vehicle rather than pay the towing and storage fees, the municipality can sue him for the total. This provision, in effect, allows the town to get paid twice: once for selling the vehicle at auction, and twice for the fees.

Read the paragraph:

Unless stayed by a court of competent jurisdiction, any fine, penalty, or administrative fee imposed under this Section which remains unpaid in whole or in part after the expiration of the deadline for seeking judicial review under the Administrative Review Law may be enforced in the same manner as a judgment entered by a court of competent jurisdiction.

625 ILCS 5/11-208.7(i).

On balance, the statute is good because it provides some minimal protections to the owner that were lacking before (see my example of the town mayor acting as hearing officer yet arguing on behalf of his village). But as with all DUI statutes, it provides powerful laws to the municipal seeking to seize a person’s property.

One issue that may be problematic with the use of an attorney as a hearing officer is the fact that the attorney would presumably get paid by the municipality. It is a conflict of interest for an attorney to act as a judge in a dispute between two parties where he is being compensated by one of the parties.

But no one asked me for my opinion before this became the law.

Driving under the influence is the only offense in Illinois that requires the offender to undergo an evaluation before sentencing. The evaluation is mandated by statute.

There is one exception to this rule, and it shows how seriously the law treats a DUI. The only other case in which the defendant is required to have an evaluation prior to sentencing is a felony sex offense. In cases of criminal sexual assault, for instance, the defendant must submit to a sex offender evaluation before the court can consider sentencing him to probation as opposed to prison. See 730 ILCS 5/5-3-1.

The purpose of the DUI evaluation is to determine whether the defendant has a substance abuse problem. While most arrests involve alcohol, the evaluation concerns the person’s alcohol as well as drug use, and not just illegal drugs. The evaluation assesses the defendant’s abuse of illicit drugs (e.g., cocaine, marijuana) and also prescription medication. Such medications are not illegal provided they are approved by a physician’s prescription. Commonly abused prescription medications include opioids such as hydrocodone (Vicodin), oxycodone (OxyContin), barbiturates such as diazepam (Valium) and alprazolam (Xanax), stimulants like methylphenidate (Ritalin and Concerta), and amphetamines (Adderall).

The evaluation is required by law and there are no exceptions. A defendant cannot appear in court on the first date, plead guilty and expect the case to be over with. The law requires that the judge must consider the evaluation before imposing a sentence. And if the person wants supervision, which is advisable over a conviction every time, he cannot get it without having the evaluation first.

The statute that requires the evaluation is in the Illinois Vehicle Code at 625 ILCS 5/11-501.01(a). It reads as follows:

After a finding of guilt and prior to any final sentencing or an order for supervision, for an offense based upon an arrest for a violation of Section 11-501 or a similar provision of a local ordinance, individuals shall be required to undergo a professional evaluation to determine if an alcohol, drug, or intoxicating compound abuse problem exists and the extent of the problem, and undergo the imposition of treatment as appropriate.

Note that the statute requires not only an evaluation, but also any treatment recommended by the evaluation. The treatment is often referred to as ‘DUI classes.’

During the evaluation, an examiner interviews the defendant about his alcohol and drug use in the past and present. The evaluator also reviews several documents such as the Notice of Summary Suspension/Revocation, traffic tickets, results of chemical testing (e.g., breathalyzer slip or laboratory results concerning a blood draw or urinalysis), and finally, the person’s driving record.

The evaluator will ask questions about the pending case, as well. The defendant does not have to answer questions about the pending case, as he has the 5th Amendment privilege against self-incrimination. That being said, however, refusing to answer questions about the pending case will cause the evaluator to term the evaluation incomplete. This issue should be reviewed with an attorney before the interview.

After reviewing all of the above, the evaluator will classify the defendant into one of three groups, which are meant to represent the risk that the person could re-offend:

• Level I (Minimal Risk)
• Level II (Moderate Risk or Significant Risk)
• Level III (High Risk Non-Dependent or Dependent)

The evaluation is standardized statewide. Each provider has to be certified by the Illinois Department of Human Services, Department of Alcoholism and Substance Abuse.  The evaluation is standardized in the respect that person accused of DUI will have the same questions asked and get classified in the same way, whether they are downstate or in Chicago. The evaluation is called an Alcohol and Drug Uniform Report. It is made part of the court file, but placed under seal so that only judges, prosecutors, and attorneys can see it. The rest of the court file, however, remains public record.

The evaluation will recommend completion of a number of hours of treatment based on the person’s classification. The treatment required by each group is as follows:

• Minimal Risk: 10 hours of DUI Risk Education.
• Moderate Risk: 10 hours DUI Risk Education followed by 12 hours of early intervention. The early intervention is provided over a minimum of four weeks. There can be only one day of classes each week and no more than three hours in that day. Additionally, if recommended by the evaluation, the defendant will be required to participate in an on-going continuing care plan.
• Significant Risk: 10 hours DUI Risk Education followed by 20 hours of substance abuse treatment. Anyone classified as Level II Significant must participate in a continuing care plan.
• High Risk: 75 hours of substance abuse treatment and after completion, participation in a continuing care plan. This applies to defendants categorized as Level III Non-Dependent. Those people who are categorized as Level III Dependent must admit themselves to an in-patient facility.

Although the evaluation sets the number of hours, the judge has discretion as to the treatment plan recommended. In all cases, the defendant must complete the treatment recommended by the Alcohol and Drug Uniform Report. An alternative will not satisfy the requirement of the statute that persons “undergo the imposition of treatment as appropriate.” See 11-501.01(a).

In Cook County and the collar counties, each courthouse has its own rules about the evaluation. In Cook County, all evaluations are conducted by Alcohol and Drug Evaluation Services (ADES), which is operated by Central States Institute on Addiction (CSI). DuPage County requires all evaluations to go through the Adult Probation Department. In Lake County, all defendants must undergo an evaluation at Northern Illinois Council on Alcoholism and Substance Abuse (NICASA). In Will County and Kane County, defendants can choose which provider they want to use. The defendant has to pay for the evaluation, which can range form $150-$250.

The evaluation should never be undertaken without thorough advice from a lawyer, because if the evaluation goes poorly, the consequences can be long lasting.

The evaluation specifically indicates whether the defendant was ‘honest, consistent and non-evasive.’ A judge may read the evaluation and become offended that the defendant was less than forthcoming about his substance abuse. That judge could deny a first offender his supervision, and instead impose a conviction. That would result in a revoked driver’s license.

Anyone whose driving privileges are revoked by the Secretary of State must undergo a formal hearing to be reinstated. The formal hearing is an adversarial process in the Department of Administrative Hearings wherein a prosecutor represents the Secretary of State and seeks to deny reinstatement. The DUI evaluation plays a pivotal role in the formal hearing and could cause denial of reinstatement.

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.

Call the cops on a drunk driver, win $100. This is the Drunk Busters program in Illinois sponsored by the Alliance Against Intoxicated Motorists (AAIM).

Drunk Busters started in Illinois in 1990 and has spread nationwide. AAIM promises to pay $100 to anyone who calls 911 to report an intoxicated driver and later the call results in an arrest for driving under the influence.

The program has paid out more than $418,000 over time, and according to AAIM, resulted in the arrest of 4,181 people. AAIM does not say whether any of these drivers were ever found guilty by a court of law, or whether their arrests were thrown out for no probable cause. AAIM also does not say whether any people cashing in on Drunk Busters have made multiple calls for multiple payments.

The suburbs of Chicago are covered by Drunk Busters. The program runs year round in DuPage, Kane, McHenry, Lake and Will County. The reason why Cook County is excluded is not clear.

During the morning broadcast on December 21, 2011, Chicago news radio station WBBM (AM 780) reminded its listeners that the program is in place for the holiday season. It is unclear whether AAIM paid the radio station to make the announcement.

Participants get a report from the police department verifying that an arrest was made and submit it for the reward.

Due process says that the defendant is entitled to know whether the 911 call that caused his arrest was made by a person getting paid for it. The defendant is also entitled to know whether that person has received multiple pay outs. It is important to determine whether a person wanted to remain anonymous for the 911 call but later gives his name to get the money.

The Chicago Tribune ran a story on drunk driving arrests on December 19, 2011. The article discusses how the numbers of arrests for driving under the influence statewide have decreased over several years.

A few points from the article should be examined.

First, the Illinois Department of Transportation (IDOT) reports that from 2007 through 2010, arrests for DUI have fallen 16 percent. Additionally, the number of fatal accidents related to alcohol have decreased 33 percent.

The debate is whether these decreases can be attributed to tougher DUI laws or some other cause. Mothers Against Drunk Driving (MADD) says that the increase in penalties for DUI caused the reduction in arrests. People, they say, are getting the message.

But history does not tell the same story.

Illinois lowered the legal limit from 0.10 to 0.08 in 1997. Coincidentally, the number of arrests for DUI in 1996, prior to the change, was 44,710. After 0.08 became law, the number of arrests increased to almost 50,000 in 1999.

Statewide, the number of arrests for DUI in Illinois stayed constant at approximately 50,000 until 2008, the beginning of the recession.

The history lesson in these numbers is that fewer people are being arrested for DUI because fewer people drink at bars and restaurants because they cannot afford to go out. Attorney Donald Ramsell makes this point in his interview to the Trib.

Nonetheless, anti-drunk driving advocates from MADD and the Secretary of State want to take credit for the reduction in numbers. Susan McKeigue, the executive director of MADD in Illinois, notes that a person who gets a DUI is now thought of as a “pariah” under these new tough laws.

One of these new laws is the Monitoring Device Driving Permit (MDDP), which went into effect on January 1, 2009. A person who blows 0.08 or refuses the breathalyzer gets a statutory summary suspension of his driver’s license. However, that person may drive during the suspension after installing a Breath Alcohol Ignition Interlock Device (BAIID) in the vehicle. The device makes sure that the person’s breath alcohol concentration is less than 0.05 before the vehicle can start.

Illinois lawmakers, judges, prosecutors, and police officers expected this new law would be a game-changer. But they were surprised to find that few drivers applied for the permit. According to the Secretary of State, less than 12,000 drivers have participated in the program, a fraction of those who are eligible.

To my knowledge, consumer electronics giant Best Buy was a provider for the device in 2009 and 2010. Drivers could get the BAIID installed at their local Best Buy outlet. But Best Buy stopped selling the BAIID because nobody bought it.

The MDDP law teaches us a lesson about Illinois DUI law and politics in general. First, like so many other state-approved programs, the question is why was only a small number of companies approved to manufacture the BAIID? The exclusive license to make BAIIDs for this program should have been very lucrative. Just like the Chicago parking meter contract, the deal stinks of back room trades and under the table dealing.

It turns out the BAIID license was not lucrative. The Chicago Tribune should have followed up on the issue and explained how the lobbying groups for these BAIID companies attempted in 2010 to secure a mandatory $750 fee from each driver found guilty of DUI that would go into an ‘indigent driver MDDP’ fund. Lobbyists were pushing for this law because the participation rate in the MDDP program was so low. They figured if indigent defendants (eg, those with public defenders) could have their MDDPs subsidized, then more people would participate in the program.

A $750 assessment against all defendants would have been a windfall for the BAIID companies. Like so many things in DUI, the BAIID program is an initiative with a good purpose that has been overshadowed by a pursuit of profits.

I have no problem with the message from MADD that ‘drunk driving kills.’ But they should be honest and admit, ‘not all the time.’ First-time DUI offenders are punished too severely. And all too often, law enforcement programs are obsessed with profits over good policy.