The Illinois DUI laws are so complex that DUI/DWI law is a practice area separate and apart from the criminal defense of non-DUI related felonies and misdemeanors. In fact, many criminal defense attorneys do not even practice DUI law. The DUI laws in Illinois are so convoluted that there are six different types of DUI offenses. Aside from the complexities inherent in DUI law, a competent DUI lawyer must also understand how administrative law, criminal law, and civil law affect the ongoing DUI/DWI case. Illinois DUI laws are so byzantine that Illinois does not even require someone to be driving or even someone to be under the influence of alcohol or drugs to be guilty of a DUI in Illinois. However, before a DUI offender can be sentenced he or she must be arrested, charged, and most importantly convicted. Something a trained DUI attorney can prevent.
Illinois DUI Arrest Procedure
Police officers are trained to conduct DUI arrests in a systematic manner. A police officer’s training teaches an officer to evaluate a potential DUI arrest into three foundational steps. The first step in the Illinois DUI arrest occurs when a police officer makes his or her first observations of the car driven by the defendant. The second step involves the interactions between the officer and the driver. The second step continues up until the police officer decides to place an individual under arrest for an Illinois DUI violation. The final step involves the DUI testing, which includes field sobriety tests, portable breath tests, evidentiary breath tests, and chemical testing of blood or urine.
The Initial Encounter During the Illinois DUI Arrest Process
An Illinois DUI arrest can begin in multiple different ways. The DUI arrest process can begin after an officer observes a traffic violation that leads to a traffic stop, encounters a potential DUI offender after a traffic crash, at a roadside safety check commonly known as a roadblock, or after seeing someone being in actual physical control of a car such as situations where an officer encounters someone sleeping in his or her car. Regardless of how the actual encounter begins, it will always include a police officer approaching the driver to conduct an interview.
During this initial encounter, the officer is trained to make observations that are consistent with someone impaired by alcohol or drugs. At this time, the police officer will begin to assess the driver and test the driver’s ability to multitask while making observations of such as whether the driver smells of alcohol or whether the driver has glossy or bloodshot eyes. This initial test to assess the driver’s ability to multitask is subtle and unobservable to the untrained eye. A commonly employed tactic by the police during this stage is to ask the driver to produce certain documents such as the person’s driver’s license and insurance card. The officer will then observe how the driver is able to comply with the officer’s request. While the driver is looking for the documents requested by the police officer, the officer will start asking the driver questions such as where the driver is coming from or where they are headed.
The purpose of these questions is to see if the driver is able to multitask by answering the questions while still producing the requested documents. A person who is unable to produce the requested documents while answering the officer’s questions or someone who responds inappropriately will increase the officer’s suspicion that the driver maybe driving under the influence. At this point, the officer will make a determination if he or she suspects that the driver is a potential DUI offender. If the officer makes that determination, then the officer will more often than request the driver to perform field sobriety tests. A police officer is allowed to make an arrest solely based upon the observations the officer makes during this 2nd stage of the Illinois DUI arrest process even without the benefit of any type of field sobriety tests.
Field Sobriety Tests and Other Tests Allowed by Illinois DUI Laws
Once an officer has suspicion that a person may be operating a motor vehicle while under the influence of alcohol, he or she will always request the driver to perform field sobriety tests. The most common tests an officer will request are the Horizontal Gaze Nystagmus (HGN) Test, the One-Leg Stand Test, and the Walk-and-Turn Test. These three tests are the standard battery of tests that have been tested, studied, and approved by the National Highway Traffic Safety Administration (NHTSA). Occasionally, a DUI attorney will run across a police officer that performed non-standardized such as the Alphabet Test, Finger-To-Nose, or Coin Pick-up; however, these non-standardized tests are now rarely used.
Field Sobriety Tests for Cannabis
When a police officer suspects a person to be under the influence of cannabis or a drug, the officer may employ other tests such as the Romberg Balance Test and the Lack of Convergence Test. However, before a police officer is allowed to employ these tests the officer is required to receive training and pass tests on drug recognition.
Saliva Drug Swab Test
Aside from the Romberg Balance Test and the Lack of Convergence Test, a police officer may also employ a saliva swab test. In this test, the police officer takes a swab of a person’s saliva and within a few minutes the test will detect the presence of cannabis and other drugs.
Portable Breath Test
Aside from the field sobriety tests, a police officer is allowed to request a portable breath test (PBT). A PBT is a breath test that measures the concentration of alcohol in a person’s breath. Unlike, an evidentiary breath test, which is taken at the police station, the results of the portable breath test are not admissible at trial by the prosecution.
The tests that were discussed above are used by a police officer prior to placing a driver under arrest. After arrest, a police officer can utilize additional DUI tests. These tests are different in that the police officer has already placed the driver under arrest and now the officer is seeking to gather additional evidence in the DUI prosecution. The principle evidentiary test is the evidentiary breath test. This test is what is commonly thought of when someone thinks of a breath test. The evidentiary breath test is always conducted at the police station and many steps must be followed before it is admissible in an Illinois DUI trial. Aside from the breath test a police officer can request the driver to provide a blood or urine sample. The blood sample will always be taken at a hospital but the urine sample can be taken by right at the police station.
Illinois DUI Arrest Procedure: Charging of the Illinois DUI
The final step in the DUI arrest process in Illinois involves the State bringing formal charges against the driver. A police officer is authorized to charge a driver with a misdemeanor DUI without seeking prior approval from the prosecuting attorney and it allows the police officer to impose a bond on the driver. The bond can be an I-bond or a cash bond. A cash bond can only be a maximum amount that is fixed by law. A police officer that is seeking to charge the driver with a felony aggravated DUI must first get approval from the state’s attorney of the county. A judge in bond court almost always sets a bond amount in an aggravated DUI charge. The offender’s vehicle may be towed, impounded or seized following an Illinois DUI arrest. Once the person is charged the person’s speedy trial rights apply.
What Are the Illinois DUI Laws?
The Illinois DUI laws are codified in the Vehicle Code at 625 ILCS 5/11-501 et. seq. A DUI arrest in Illinois can occur when a person drives or is in “actual physical control” of any vehicle within Illinois while:
- The alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2.
- Under the influence of alcohol.
- Under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely.
- Under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.
- Under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving.
- There is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis, a controlled substance, an intoxicating compound, or methamphetamine.
In most cases, a person charged with a DUI in Illinois will face multiple DUI charges. However, the law allows a judge to impose a sentence on only one of the DUI charges even if a jury reaches a guilty verdict on multiple DUI charges. The 6 different DUI charges in Illinois can be organized into two groups. The first group requires the DUI defendant to be under the influence, where the State must establish impairment. The second group of Illinois DUI cases does not require the defendant to be under the influence and the State does not have to establish impairment.
Under the Influence of Alcohol Required
Being under the influence is a legal term of art that is exclusive to Illinois DUI laws. Under the influence of alcohol is defined by the Illinois Pattern Jury Instructions as being unable to think or operate a motor vehicle with ordinary care. Impairment is an added element that the State must prove beyond a reasonable doubt. In cases where impairment is an element it is not enough for the State to prove that the defendant had consumed alcohol or ingested some drug. Instead, the State must establish that the consumption of alcohol affected the person’s ability to operate a motor vehicle. What that means is that in impairment DUI cases the State must prove beyond a reasonable doubt that the influence of alcohol caused you to be unable to drive your car properly. To meet this burden, the prosecuting attorney typically relies upon traffic accidents or traffic violations to establish the impairment element.
Under the Influence Not Required
The other group of Illinois DUI cases does not require the State to prove impairment. This group of DUI cases is referred to as per se DUI violations. In these per se DUI cases, the State is not required to establish that the alcohol or drug affected your ability to drive a car. Instead, all the State is required to prove is that at some point you consumed alcohol or ingested a drug. In fact, it is possible for someone to have smoked marijuana weeks before and still be found guilty of an Illinois DUI.
Thankfully, only two of the six different types of DUI cases fall are per se DUI offenses. The 4 remaining DUI types require the State to establish impairment. The two types of DUI cases that are per se DUI are subsections (a)(1) and (a)(6). Subsection (a)(1) prohibits driving or being in actual physical control of a car while having a BAC in excess of 0.08. Subsection (a)(6) forbids driving or being in actual physical control of a car while having any amount of cannabis, controlled substance, intoxicating compound, or methamphetamine in your breath, blood, or urine.
What to Do After Being Arrested for an Illinois DUI?
After being arrested for an Illinois DUI it is natural that your mind is running at a million miles an hour and it is natural to be scared. At this time what you cannot do is hope for the best. An experienced Illinois DUI attorney can begin defending your DUI case and protecting your rights immediately. In fact, many rights that an Illinois DUI offender possesses are time sensitive and if not acted upon in a timely manner, those rights are gone. The consequences for an Illinois DUI can be life changing. The criminal penalties for an Illinois DUI range from court supervision to significant prison time. Even if jail or prison time can be avoided, a conviction for an Illinois DUI can result in the revocation or suspension of your driving privileges. Each DUI is vastly different and it is absolutely necessary that your DUI lawyer has the experience to deliver the results that you need.