Articles Posted in DUI

Most drivers will never have to decide whether to take a breathalyzer test or not. But if you are driving a vehicle in Illinois, you should be aware of what could happen to you and to your license if you are ever pulled over by a police officer and asked to take a breathalyzer test.

If a police officer pulls you over and suspects that you may be under the influence of alcohol, that police officer has a right to take you down to the police station and ask that you take a breathalyzer test. If you are ever faced with a situation like this, you have to make a quick decision between two choices. Should you take a breathalyzer test or should you refuse to take a breathalyzer test? If you have not had any alcohol to drink, then the choice seems pretty clear. Taking a breathalyzer test would prove that you have no alcohol in your system. But if you have been drinking and are unsure about whether you should take a breathalyzer test, you need to be aware of what the consequences could be of refusing to take a breathalyzer test.

When a police officer asks you to take a breathalyzer test, the officer will hand you a document entitled, “Warning to Motorist” which will inform you that if you submit to a breathalyzer test and the test indicates that your blood alcohol level was .08 or above, your driver’s license will be suspended by the Illinois Secretary of State for 6 months. If you refuse to take a breathalyzer test, your driver’s license will be suspended for 12 months by the Illinois Secretary of State. These driver’s license suspensions will take effect on the 46th day after your arrest.

I recently met with a client who was arrested and charged with a DUI after he had pulled over his car to take a nap because he was afraid that he had too much to drink. You do not have to actually be driving your car to be charged with a DUI. You could be charged with a DUI as long as you had actual physical control of a vehicle on the public roadway. So as long as you were in a vehicle and you had the keys near you, the law will consider you to have been in actual physical control of the vehicle.

In the case I was recently consulted for, the client had been at a bar with some co-workers after work. He had been drinking when he decided to go home. His car was parked down the street from the bar. When the client entered his vehicle he immediately realized that he was in no condition to drive and fell asleep in the front passenger seat of his vehicle. The vehicle was not running but the car keys were in his pocket. An off-duty police officer saw him sleeping in his vehicle and started tapping on his windshield to make sure that he was okay. After the off-duty officer was unable to get a response from the client, he called the local police to report that someone may be unresponsive inside of a parked vehicle. The police officer arrived and was able to wake up the client. When the officer made contact with the client he noticed a strong odor of alcohol coming from his breath and the client appeared to be under the influence of alcohol. The police officer had the client exit the vehicle and perform field sobriety tests. The police officer arrested the client for suspicion of being under the influence of alcohol and took him down to the station. At the station, the officer requested that the client take a breathalyzer test and the client refused. In spite of there being no breathalyzer test, the client was charged with a DUI and given a court date.

In Illinois, if you take a breathalyzer test and your blood alcohol level is .08 or above, you will be facing a mandatory 6 month suspension of your driver’s license if this was your first DUI. If you refuse to take a breathalyzer test, you will be facing a mandatory 12 month suspension of your driver’s license. The suspension of your driver’s license will go into effect 46 days after the date of your DUI arrest. The same law that provides for the suspension of your driver’s license for a DUI also provides a mechanism by which you can challenge the suspension in court. In order to challenge a suspension of your driver’s license for a DUI, you must file a Petition to Rescind the Statutory Summary Suspension before the same court that is hearing your DUI case.

Police get frustrated when they pull over a motorist for suspicion of Driving Under the Influence of Alcohol and the driver refuses to submit to a breathalyzer test when the officer requests that they take such a test. The reason behind their frustration is because, in many cases, if they do not have a breathalyzer test result, it becomes harder for the state to prove in Court that the driver was operating a motor vehicle under the influence of alcohol.

The Illinois Legislature has clearly given motorists the right to refuse to submit to a breathalyzer test. The Legislature has imposed a severe penalty for refusing to submit to a breathalyzer test when requested to do so by a police officer. If you refuse to submit to a breathalyzer test you will be looking at a mandatory 12 month suspension of your driver’s license. The suspension will kick-in 46 days after you are arrested for a DUI unless you are able to persuade a court otherwise.

For several years, police and prosecutors have been trying to get around a motorist’s refusal to submit to a breathalyzer test. For the past several years, Kane County has established “no-refusal” weekends. “No-refusal” weekends were centered around certain events like New Year’s Eve and Fourth of July weekends. Kane County authorities would set-up roadblocks to close off certain roads and stop every vehicle. If the police suspected that the driver of a certain vehicle was Driving Under the Influence, they would request that the driver submit to a breathalyzer test and if they refused, the police would obtain a warrant from a judge who was on the scene to force a blood draw from the driver. If the driver refused to comply with the judge’s order, the driver could be arrested and charged with Contempt of Court.

Being pulled over by a police officer is a stressful experience. This is especially true if you know that you have been drinking alcohol. Your mind starts racing and you want to make sure that you don’t give the police officer any reason to suspect that you are under the influence of alcohol. Unfortunately, many motorists don’t really think before they open their mouth. They don’t realize that the police are not there to help them. The police have a job to do and their job begins the moment they notice your vehicle. You need to understand what the police officer is doing and how your conduct and your statements can be used against you in court.

First of all, a police officer cannot pull over your vehicle for no reason. In a typical DUI, a police officer will notice a driver committing a traffic violation. This could be speeding, failure to stop at a red light or a stop sign, or improper lane usage. Once the police officer pulls over your car, the police officer begins making observations that will provide them with the legal justification to pull you out of the car and ask that you submit to a field sobriety test. In order for a police officer to ask that you exit your car to perform a field sobriety test, the police officer must have probable cause to think that you may be under the influence of alcohol. A mere hunch is not enough. The police officer must have specific articulable facts to justify their suspicions.

The police officer will begin making observations as soon as they suspect that alcohol may be involved. If a police officer asks you to exit your vehicle, you should follow the officer’s request. It is not up to you to decide whether the police officer has probable cause to suspect that you may be under the influence of alcohol. The issue of whether the police officer had the legal right to ask that you exit your vehicle is a decision that will be reviewed later on in Court in front of a judge.

Last June, the United States Supreme Court issued a decision in a DUI case that many DUI lawyers had been closely following. The case is actually three separate cases consolidated into one case captioned, Birchfield v. North Dakota.  What united all 3 cases was that they all dealt with a North Dakota law which made it an actual crime to refuse to take a breathalyzer test and a blood test when requested to do so by the police.  There is no such law in Illinois.  A refusal to take a breathalyzer test or blood test can result in the suspension of your driving privileges in Illinois but is not an actual crime in Illinois.  However, 13 other states make a refusal to submit to a breathalyzer test or blood test a crime.  Both North Dakota and Illinois have “implied consent” laws which means that when you operate a motor vehicle upon the public roads, you consent to submitting to a breathalyzer and a blood test when requested to by the police.  Illinois warns you that failure to consent to a breathalyzer test could result in the suspension of your driving privileges while North Dakota warns you that failure to consent to a breathalyzer test could result in criminal prosecution.  Refusing to submit to a breathalyzer or a blood test is not a crime in Illinois.  The refusal to submit to such testing can only result in the suspension of your license for a period of time, usually one year, if this is your first DUI.  Sometimes, refusing to submit to a breathalyzer or blood test could benefit the underlying DUI case making it harder for the state to prove their case with test results, but will not stop the suspension of your driver’s license.  Refusing to submit to a breathalyzer test or a blood test is a misdemeanor in North Dakota.  By making it a crime to refuse to submit to a breathalyzer or a blood test, a driver would be more likely to consent to such testing, thereby making it easier for the state to prove guilt in an underlying DUI prosecution.

In a 5 to 3 decision, the Supreme Court ruled that the police do not need a warrant to do a breathalyzer test but need a warrant to take a blood test.  The majority opinion was written by Justice Alito who held that “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”  Since it’s considered a search incident to a lawful arrest, a warrant is not needed.

Since the case involved 3 separate DUI arrests, there were 3 different outcomes.  One driver, Danny Birchfield, had his conviction for failing to consent to a blood test overturned.  The second driver, Danny Bernard, Jr., had his conviction for failure to submit to a breathalyzer test upheld.  The third driver, Steve Beylund, who consented to a blood test under threat of criminal prosecution, had his case returned to the trial court in light of the holding that a warrant is required for a blood test.

It’s been a tough week.  You have been swamped at work and you have been busy at home with activities with the kids.  Finally it’s Friday and you made it. Your co-workers invite you to go out for drinks to relax after the end of a long week and you accept.  After a couple of hours at a local bar of unwinding with your co-workers and after a few drinks, it’s time to go home.  You get in your car and start driving and after a few minutes you realize that you may be in no condition to drive.  You don’t know if it’s the alcohol or if you are just tired from your long week, so you decide to pull over and take a nap because you don’t want to take a chance of nodding off while driving and getting into an accident.  So you pull over on a side street, park your car, shut off the engine and take a nap.  After a few minutes you wake up to the sounds of knocking on your car window.  It’s a police officer who is trying to get your attention.  You explain to the officer that you are tired so you pulled over to take a nap before heading home.  The officer asks you if you have been drinking and you tell him you had a couple of drinks a while ago but had a long week and are just tired.  You pull your car keys out of your pocket and the officer asks you to exit your vehicle.  The officer asks you to perform certain tests and then informs you that your are under arrest for suspicion of driving under the influence of alcohol.  So how can you be charged with a DUI when you were just taking a nap in your car?

This fact pattern is pretty common.  Unless you understand the law in Illinois, it’s hard to comprehend how you can be charged with a DUI when you were doing the responsible thing and getting off the road when you realized you were in no condition to drive.

The key factor in determining whether you could be charged with a DUI is if you had actual physical control of a motor vehicle.  Whether you had actual physical control of your motor vehicle depends on the specific facts of each case.  The Court will look at the totality of the circumstances to determine whether you had actual physical control of your motor vehicle.  The leading case on this issue in Illinois is City of Naperville v. Watson, 677 NE2d 955 (1977).  In this case, the police found Watson sitting in the driver’s seat asleep with his head on the passenger seat.  Watson had the engine running so he could have the heat on.  There was no evidence that he was driving or that he was planning on driving his vehicle.  Yet, in this case the Court found that he was in actual physical control of his vehicle based on the fact that he was sitting in the front seat, the keys were in the ignition and the car was running.  Since he was in actual physical control of his vehicle, he could be charged with a DUI.  What seemed to be important in that case was that Watson had possession of the keys to the vehicle.  The Court specifically found that “sleeping it off” is not a defense to a DUI.  The Court refused to give an intoxicated motorist a “good citizen discount” for realizing they were in no condition to drive.  Rather the court doesn’t want someone who is intoxicated from entering a motor vehicle unless they are a passenger.

Most DUI’s in Illinois are a misdemeanor.  If you are operating a motor vehicle on the public roads with a blood alcohol level of .08 or above, you could be charged with a DUI. The maximum criminal punishment for a Class A misdemeanor in Illinois is up to one year in jail and a fine up to $2,500.00.  But there are situations where you could be charged with a felony.  This is known as Aggravated Driving Under the Influence, or Aggravated DUI.  This article discusses how you can be charged with an Aggravated DUI.

Special rules apply to people who have previously been convicted of a DUI.  If you are convicted of a 3rd or subsequent DUI, you could be charged with a Class 2 felony.  Generally, you could be facing a penalty of between 3 to 7 years in prison, probation up to 48 months, along with fines, fees and drug treatment.  If your blood alcohol level was .16 or above, you will be facing a mandatory 90 day jail sentence.   A fourth offense is non-probationable and carries a mandatory 3 to 7 year prison sentence.  A 5th offense is a non-probationable Class 1 felony that carries 4 to 15 years in prison.  A 6th offense is a non-probationable Class X felony which carries a mandatory 6 to 30 year prison sentence.  If the DUI results in the death of another, even if it’s your first DUI, you could be charged with a Class 2 felony.  You are eligible for probation, but in order to be sentenced to probation, the Judge has to find extraordinary circumstances to avoid imposing a prison sentence.  If you are sentenced to a prison sentence, you are facing 3 to 14 years for one death, and 6 to 28 years for 2 or more deaths.

The following instances allow the state to charge you with a Class 4 felony of Aggravated DUI:

I just received a phone call from a client who was arrested last night for a DUI and was asking me questions about the paperwork that the police gave her when she left the police station. More importantly, she wanted to know what a Statutory Summary Suspension means and how this will affect her ability to drive.  Because I’ve been handling DUI’s throughout Cook County, DuPage County and Kane County for 25 years, it’s easy to forget how confusing the whole DUI process can be for someone who does not handle cases like this every day.  So, I want to take this opportunity to explain the Statutory Summary Suspension process so you can understanding what is happening, and what will happen in the coming months with your driver’s license.

In Illinois, it is against the law to operate a motor vehicle upon the public roads while you are under the influence of alcohol or drugs.  If you are found guilty of Driving Under the Influence (DUI), you could be facing criminal penalties which cannot exceed one year in county jail and a fine of up to $2,500.  Most people know this.  But what many people do not know is that when you have a DUI case, you also have a separate legal matter between you and the Illinois Secretary of State which involves your driver’s license.  If a police officer requests that you submit to a Breathalyzer Test and your blood alcohol level (B.A.C.) is .08 or above, your driver’s license will be suspended for six months starting 46 days after your arrest for a DUI.  If the police officer asks you to take a Breathalyzer Test, and you refuse to take that test, your license will be suspended for 12 months starting 46 days after your arrest for a DUI.

A refusal to take a Breathalyzer Test is defined a little more broadly than simply refusing to submit to the test.  If you agree to take the test and are unsuccessful in submitting an adequate breath sample, then this will be considered a refusal to submit to a Breathalyzer Test. What typically happens is that the police officer will instruct you on what you must do to provide an adequate breath sample so that the machine can register a valid result.  You must pay close attention to what the police officer is saying because if you do not follow the police officer’s instructions and are unable to provide an adequate breath sample, the Secretary of State will try to suspend your license for 12 months because they will consider this to be a refusal.