Driving Under the Influence (DUI) charges are stressful, complicated, time-consuming, and expensive. While at first glance they may seem relatively simple, the law is extremely complex and it is crucial that you have an experienced attorney that you can trust to navigate you through your case. The attorneys at Kearney Law Office have extensive experience in DUI defense in DuPage, Cook, Will, Kendall, and Kane counties. In addition, Attorney Jennifer K. Kearney was selected as a Rising Star by SuperLawyers Magazine in 2012 as one of the top up-and-coming attorneys in DUI defense.What exactly is a DUI charge?
Driving Under the Influence (DUI) can be charged many different ways. Most importantly, it can be charged as either a misdemeanor or a felony. Misdemeanors are crimes that are punishable by up to 364 days in the county jail, and up to a $2,500 fine. Felonies are punishable by a year or more in state prison, and have larger fines. Different factors will determine whether the DUI is a misdemeanor or felony. These can include: prior criminal and traffic history, whether your driving privileges were valid at the time of arrest, whether you had valid motor vehicle insurance at the time of arrest, whether the incident involved an accident, and if so, whether someone was injured or killed. Most first and second offenses are charged absent any aggravating factors. Your legal team will be able to advise you whether you are being charged with a misdemeanor or felony.What does “Under the Influence” mean?
It depends what kind of DUI you are charged with. Apart from the misdemeanor/felony classification discussed above, DUIs can be charged six different ways. They are called:
- (a)(1): When the alcohol concentration in the driver’s blood or breath is .08 or higher;
- (a)(2): When the driver is “under the influence of alcohol *more on this later*;
- (a) (3): When the driver is under the influence of intoxicating compounds;
- (a)(4): Under the influence of drug(s);
- (a)(5): Under the combined influence of alcohol, drug(s) or other intoxicating compounds;
- (a)(6): There is any amount of any drug in the driver’s breath, blood, or urine resulting from the unlawful use of cannabis, intoxicating compounds, or methamphetamine.
Depending on the facts, the police will charge a DUI as many ways as possible in the hopes that they will be able to prove at least one of the charges beyond a reasonable doubt. That is why you may have received more than one traffic ticket that says “DUI”.
The most common DUIs are (a)(1)s and (a)(2)s.
In an (a)(1) case, the police have taken a sample of your breath, blood, or urine. Or, in the event of transport to a hospital, they’ve gotten your labs there. If the breath, blood or urine shows a blood alcohol concentration (BAC) of .08 or more, you will be charged accordingly. This evidence can be difficult to overcome, but there’s good news: the laws concerning the collection of such evidence are strict, and anything short of strict compliance can render the evidence inadmissible. Your legal team will investigate the circumstances in your case and determine whether there is a valid challenge to the test(s).
The other most common (and most misunderstood and frustrating to drivers) DUI is the (a)(2). In an (a)(2) arrest, there is no blood, breath, or urine to indicate a driver’s blood alcohol concentration (BAC). Many people think that if they refuse to take the breath test, they can’t be charged or found guilty of a DUI. Wrong! From the moment the police begin observation of your vehicle and your driving, they are collecting evidence. The reason for stopping you may be simply an expired license plate or a burnt-out tail light. They will testify about any unusual or illegal driving, and any problems you have pulling over. They will explain to the Judge the odor of alcohol they smelled and any mannerisms or other physical indications of alcohol consumption they observed. They will testify about your performance on road-side sobriety tests (called Standardized Field Sobriety Tests) and any admissions you have made to drinking or using drugs. That testimony alone can be damaging enough to lose a DUI trial. They don’t need a breath, blood or urine result to prove the charges. It makes it more difficult for them to prove, but they don’t need it. What many drivers don’t know is that you can refuse to do the road-side tests. Some people think that they will prove their sobriety to the police officer by doing the tests. What they don’t understand is that the tests are much more complicated than they think, and that the police officers are looking for more clues than the obvious. You might think that you’ve passed, or done “good enough”. You probably haven’t. And just as with the breath, blood and urine tests, a DUI can be lost even if a driver refuses the road-side tests, but their chances at trial improve significantly the less evidence they provide the police.
That being said, there is another important component to DUIs:THE STATUTORY SUMMARY SUSPENSION
Here’s where it gets trickier. If you are a first offender and you refuse to take a breath test at the police station, your driver’s license will be suspended for one year. During that year, you may drive your car after it is equipped with a Breath Alcohol Ignition Interlock Device (BAIID). You will be eligible for the BAIID after 30 days of the suspension, thus rendering you able to drive the last 11 months of the suspension. The BAIID device requires you to blow into a machine that is connected to your ignition. The machine detects any amount of alcohol and will not allow the car to start if there is any present. Additionally, it keeps a record of all attempts, and any violations are reported back to the Secretary of State who has the discretion to cancel the BAIID on your vehicle.
If you take the test at the police station and have a BAC of .08 or more, you will have a six month suspension, of which you can have a BAIID for the last 5 months.
If you have been arrested for DUI within five years of a new stop and you refuse testing, your license will be suspended for 3 years. If you test and have a BAC .08 or higher, your license will be suspended for one year. However, in this scenario, you are not eligible for a BAIID, and you will not be able to drive for your entire suspension period.ISN’T THERE ANY WAY AROUND THIS?
Maybe. It depends on the facts and circumstances of your case. The Statutory Summary Suspension component of your DUI is civil in nature. It is not part of the criminal charge. Therefore, there is a lower burden on the prosecution to make the suspension “stick”. They only have to prove that it was reasonable for the officer to arrest you. They do not have to prove it beyond a reasonable doubt. For that reason, a suspension may remain in effect even if a driver wins their DUI trial. At Kearney Law Office our attorneys have successfully defeated suspensions after hearing on many occasions, but again, it is very fact-specific. Your legal team will assess the likelihood of getting rid of your suspension once your case can be fully evaluated.