Tuesday, December 30, 2008

Big Changes to Illinois DUI Law

On January 1, 2009 the penalties for being charged with a DUI will increase substantially. Those penalties are based solely on the arrest, not a conviction, as erroneously reported in yesterday's Chicago Tribune.

The changes are part of a bill that was unanimously passed by the Illinois General Assembly in 2007. The delay was to let the Secretary of State prepare to implement these changes. The law doubles the length of time driving privileges will be suspended for a first-time offender.

A first-time offender with a valid license and no accident(serious injury or death) who submits to testing and fails will have his/her driving privileges suspended for six months (currently it is three months) based on the Statutory Summary Suspension for DUI arrests. A first-time offender who refuses testing will have his/her license suspended for one year (currently it is six months). Again, this is simply for being charged with a DUI, not for being found guilty of a DUI. Think about it; even if all of the criminal charges are dismissed, there is no way for the law to make you whole for taking away your driving privileges simply because you were arrested.

Under the current law, you cannot legally drive without receiving permission from the court, for work or educational purposes, a Judicial Driving Permit (JDP). The new law, effective January 1, permits a first-time offender full driving privileges, after a 30 day suspension that applies to everyone, as long as they inform the court in writing that they wish to drive. That desire to drive will be granted if the defendant opts to have a Breath Alcohol Interlock Ignition Device(BAIID) installed in their vehicle. The cost of the installation and monthly service fees to the provider are an additional cost to the defendant. The defendant must pay fees in full upfront to the Secretary of State. The fees are $30 per month. A six month suspension will cost $150. A one year suspension will cost $330. The installation fee is separate and paid to the company providing the BAIID installation and services. It is approximately $100 to install and then roughly $85.00 per month. Yes, this is in addition to the fee paid to the Secretary of State.

There are several terms that could trigger a violation of the use of the Monitoring Device Driving Permit (MDDP). But one to note is that upon a conviction for a moving violation such as speeding, running a stop sign, or making a U-turn where prohibited, the Secretary of State will lengthen the original suspension. A six month suspension would become a one year suspension, and a one year suspension would become a two year suspension. Yes, you would be required to pay the associated fees to the BAIID service provider. It is imperative that you get legal assistance immediately if you are charged with a DUI because in these times; this arrest has just become terribly expensive, with the potential financial impact running into tens of thousands of dollars.

Monday, December 22, 2008

Should I Blow (or do any of the other tests)?

The answer to this question varies based on several factors, including:

* Is this your first DUI, or do you have an earlier arrest for DUI in any State?
* Are you over 21?
* Do you hold a Commercial Driver's License (CDL)?
* Many other variables

When an officer first asks you step out of your vehicle and submit to Standardized Field Sobriety Tests, the officer is likely just looking to become more confident in his decision to arrest you. Ultimately, no matter how well you do, the officer will probably arrest you and charge you with a DUI. I had a client where the officer wrote on the State's Evidence Reports that my client had passed all of the Standardized Field Sobriety Tests... that officer still allowed me the privilege of serving my client. My client was not told "Sir you have passed the Standardized Field Sobriety Tests, I am sorry for any inconvenience", and told to continue on his way. He was arrested for DUI!

The Breath Test should not be taken unless you are certain that you had no more than a small glass of wine, not a tumbler (and you weigh more than Paris Hilton). You can still be charged with DUI, even if you submit to the Breath Test and the result is under the legal limit in Illinois of .08 BAC. I had a client who willingly submitted to the breath test and his results were under the legal limit of .08. He still was charged,and after several court appearances I was able to successfully have all of the charges dismissed. Based on that example, you should assume that even if you blow, and blow under the legal limit, the officer will not tell you "Ma'am you have passed the Breath Tests, I am sorry for any inconvenience, and you are free to go."

Blood or Urine tests are amongst the trickiest. Did you know that your blood or urine can show traces of drugs that you ingested weeks, if not months ago? Did you know that you could be found guilty of a DUI, even if you had a prescription for the drug that the police found in your system?

Once arrested, you face both criminal charges and the loss of your driving privileges. You need an attorney who is experienced in the complex field of DUI law to defend your freedom and driving privileges, and represent you in the Secretary of State's administrative proceedings. An attorney who specializes in defending DUI charges will be able to guide you on the immediate steps which must be taken very promptly to give you the best possible outcome.

Monday, December 15, 2008

Drink Very Carefully If You Are Driving This Holiday Season

If you are out drinking, and plan to drive, you need to know what is in your drink at all times. No, I am not talking about date rape (and guys this applies to you as well), read on. You could be charged with a DUI for driving under the influence of alcohol that has been enhanced by drugs, even if you did not know you had consumed drugs!

I recently overheard a conversation in a beauty salon, wherein a woman told the story of being in a bar recently, at which time she became tired of a fellow (male) patron's politically charged rant. When he went to the bathroom, she passed his "friends" an Ambien, which, at her request, they placed in his drink. This is a variation on the great Chicago tradition of "slipping a Mickey". After Mr. Poitical Rant's "friends" indulged her request, she left the bar, with no knowledge of whether Mr. Rant drove home safely, or what happened to him that night.

Fast forward. Our protagonist saw Mr. Political Rant and his "friends" a few weeks later; the guy appeared none the worse for wear. Apparently, and fortunately, there had been no vehicular accident involving the unsuspectingly doped bar patron on the night in question, nor any other reason for the police to take a breath, urine, or blood sample from him. It is very easy to imagine many less fortunate outcomes, including accidents involving fatalities, run-of-the mill accidents, and probable cause stops from bad driving. Any of these unfortunate happenings could have led to the unsuspecting doped patron facing a DUI charge not of his making.

Wednesday, December 10, 2008

You Aren't Behind on Your Child Support Payments Are You?

One more reason, besides the obvious, to stay current on your child support payments, your Illinois driver's license can be suspended.

I am not quite certain what the connection is between a driver's license and delinquent child support payments because many parents need to be able to drive in order to work. It is the payment from work that permits them to pay child support. Anything that would hamper the parent from earning a wage suggests to me a decreased ability to pay child support but this plan has brought in millions of dollars in delinquent child support.

It is important that you stay current on your child support payments. If you are unable to do so, it is not the custodial parent you need to talk to but the court in order to avoid the suspension. It is not uncommon to have informal payment arrangements where you pay what you can directly to the custodial parent. This will not prevent your driver's license from being suspended if the official court records suggest that your payments are delinquent.

Under this law, the court can order the driver's license suspension and that order is then submitted to the Secretary of State. The order can be entered once the court has determined that the parent is more than 90 days behind in making payments.

In Illinois, driving while your license is suspended is a criminal misdemeanor. According to the Illinois Vehicle Code, you can be found guilty of this offense for driving or being in physical control of the vehicle. An individual who is convicted of this offense the maximum sentence is 364 days in jail and/or fines up to $2,500.

Tuesday, December 9, 2008

What Is Driving Under the Influence?

Many people believe that they have to be drunk or high in order to be charged and found guilty of DUI in Illinois. They are wrong. Today I will cover drinking and driving, but look for an upcoming blog on drugs and driving.

In Illinois, you can be found guilty if you do not blow, or even if your breathalyzer results are below 0.08 BAC. While the legal limit in Illinois is under 0.08, you are not deemed "sober" (for purposes of the law) unless you blow under 0.05. Even in those instances where you blow under 0.05, you may still be arrested and need to hire an attorney. The range between 0.05 and 0.08 is where you may be found guilty of driving under the influence.

BAC levels in this gray area, or in cases where a blow was not given, may cause other signs to be considered in order to determine whether you are "under the influence". Those signs include:

* there was an accident that was your fault
* driving erratically, e.g. weaving in and out of your lane
* driving the wrong way on a one way street
* slurred speech
* bloodshot eyes
* disheveled clothes
* stumbling or swaying

In addition to the non-exhaustive list of signs above, there are also standardized Field Sobriety Tests (FST). The FSTs include the one-leg stand, walk and turn, and Horizontal Gaze Nystagmus (HGN). There are also non-standardized tests such as the finger-to-nose test, alphabet test, or coin test. As you can imagine, there probably would not be an arrest unless the officer thought you failed the test.

What is driving under the influence of alcohol? It all depends.

Sunday, December 7, 2008

Little Known Consequences of a Chicago DUI Arrest

Did you know that your license can be suspended just because you were charged with a DUI?

The consequences of driving in Chicago, or anywhere else in Illinois, while your license is suspended or revoked based on a DUI arrest can be huge. There are no emergency defenses, like driving a friend to the hospital, that permit you to drive. Even worse, the car is subject to forfeiture, even if you do not own the car!
Sometimes the lawmakers just doesn't understand the hidden impact of the legislation they pass.

Monday, December 1, 2008

Lake County Judge Keeps HIis Driving Privileges While DUI Case is Pending

Judge David Hall prevailed on his Statutory Summary Suspension Hearing. He will not have his driving privileges restricted while his DUI case is pending in Lake County.

In Illinois, a driver agrees, known as implied consent, to submit to chemical testing, breath, blood, or urine, at the request of an officer who suspects a DUI. There are consequences to the suspected driver whether permission is granted to take the test or not. 

In the case of Judge Hall, he did not submit to a breath test however his blood was tested after he was taken to the hospital.

Whenever one is charged with a DUI a distinct action occurs simply based on the arrest, not a subsequent finding of guilty. A driver will have their driver's license suspended for a minimum of three months(90 days) if they submitted to chemical testing.  If the driver does not submit then the suspension is for six months (180) days. There are different penalties, often more severe, if the driver holds a Commercial Driver's License(CDL); is under the age of twenty-one; or has been charged before with a DUI. This action is taken by the Secretary of State, not the court hearing the underlying criminal offense of DUI. 

To avoid the suspension the driver must have a hearing on the Statutory Summary Suspension, again this is separate from the criminal matter, and prevail in order to avoid losing their driving privileges. In order to have a hearing, one must request it within 90 days of the arrest. Once the request for a hearing has been made, the State must provide a hearing within 30 days. This is to prevent the hardship to the driver of losing driving privileges, assuming a great outcome at the hearing.

The Petition to Rescind Statutory Summary Suspension is narrow in its operation. One can only win for the following reason:

        1) The officer did not have probable cause for the traffic stop
        2) The officer did not have probable cause to believe the petitioner was driving under the influence
        3) The Petitioner did not refuse to submit to testing by the Officer
        4) The Petitioner submitted to testing by the Officer and the results were under.08 BAC

I will write more on my blog later but there are big changes coming to Illinois in DUI law as of January 1, 2009.