Driving Under the Influence


     A Driving Under the Influence (DUI) charge is a class A misdemeanor in Illinois, just one step under a felony.  A first time offender can be sentenced to a fine up to $2,500, jail time up to 364 days, and have his license revoked indefinitely.  The cost of a first time DUI can mount quickly when considering  the installation charge and monthly fee for a Breath Alcohol Interlock Ignition Device (BAIID), which is the in-car breathalyzer that some defendant's must have installed in order to drive, as well as costs associated with alcohol treatment, attorney's fees, and court costs.  


     There are no fewer than seven types of DUI charges in Illinois.  What does that mean, you ask?  For example, if you blow .08 or higher you know that you can be arrested for DUI.  That’s commonly called “(a)(1)” by DUI attorneys due to it falling under 625 ILCS 5/11-501(a)(1), which states as follows:

  Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound   or compounds or any combination thereof.

     (a) A person shall not drive or be in actual physical control of any vehicle within this State while:

       (1) the alcohol concentration in the person's blood, other bodily substance, or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2;

     That’s pretty straightforward, but that’s just the one way to get charged with a DUI.  Let’s take a look at the second way.  625 ILCS 5/11-501(a)(2), or “(a)(2)” as DUI attorneys call it, is at best, incredibly vague:

  Sec. 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound   or compounds or any combination thereof.

     (a) A person shall not drive or be in actual physical control of any vehicle within this State while:

       (2) under the influence of alcohol;

     Okay, so the first one makes it clear that you can be charged with a DUI if the alcohol concentration… is .08 or higher.  The second one though, it just says you can be charged with a DUI if you’re “under the influence of alcohol.”  What does that really mean?  Isn’t that just the same thing?  How would you know if a person was under the influence of alcohol if they didn’t have a .08 breathalyzer result?  Those are all great questions.

     625 ILCS 5/11-501(a)(2) is the statute a DUI is charged under when the State does not have a breathalyzer result as evidence.  Didn’t you just say that I cannot refuse the breathalyzer test at the station?  Not exactly; I said that if you refused, “your license will be automatically suspended.”  Here’s the catch: if you refuse, your license is suspended, but if you blow .08 or higher, your license is also suspended.  The only advantage to blowing is that your suspension is usually shorter because you did not refuse. The disadvantage is that if you do blow .08 or higher, it will be used as evidence against you, and even without any other indicators of intoxication, it can lead to a conviction.  That is a tremendous disadvantage.

     License suspension aside, if I don’t perform the breathalyzer, how can the State prove me guilty beyond a reasonable doubt in a DUI trial under “(a)(2)?”  They do so by proving that your appearance, statements, actions, etc. were all indicative of being under the influence of alcohol, and you were therefore DUI beyond a reasonable doubt.  If you’re thinking that this must be tough for them to do, you’re right.  If you refuse the field sobriety tests, the PBT, and the breathalyzer at the station, the State is missing key evidence to convict you for DUI.  If you say the minimum, and your actions don’t betray you, e.g. falling all over the place, yelling out “What do you expect, I’m DRUNK!” the State has a very difficult case to prove, although not necessarily impossible.  By the way, that statement was screamed by a client of mine during a DUI stop.  That did not help her case…

     In cases where the State is starved for evidence, as you might imagine, there is a lot more wiggle room during plea bargaining.  Many times the State will agree to lift the suspension immediately in exchange for a particular plea, other times the State might agree to amend the DUI to something less innocuous in exchange for a plea, in the really good cases, the State will outright dismiss the DUI.  In any event, none of these plea bargains usually happen, even in really bad cases for the State, without a contested hearing in which you prove just how bad their case is… they usually won’t admit it outright.

In some counties, it is common for the State to charge you with two DUIs; one under “(a)(1)” and a second under “(a)(2).”  You might be asking yourself, “How can I be charged with TWO DUIs?  I may not be a lawyer, but doesn’t double-jeopardy protect me from being charged twice for the same crime?”  It sure does, but you need to understand one very small detail: jeopardy does NOT attach in a criminal trial until the jury is sworn in, and it does not attach in a bench trial (trial by judge only) until the first witness is sworn in.  Until the point where jeopardy attaches, the state can charge you for all seven variants of DUI if it wished to do so.  It can only try you on ONE.

     So why charge a person with two DUIs?  The most common two DUI charges against a defendant are “(a)(1)” and  “(a)(2).”  That said, there is a lot of surface area to attack on “(a)(1).”  For example, if the defense attorney can show that the breathalyzer was not configured properly, had not been maintained correctly, was not operated by a certified operator, etc.,  the “(a)(1)” charge has a better chance than “(a)(2)” in most cases of being suppressed and/or dismissed prior to trial, when jeopardy attaches.  When that happens, the State still has a fallback position with “(a)(2),” even though it’s a tough case for them to prove.  So what it does is essentially gives the State two bites at the same apple in some situations.  To be clear, if the defense attorney can convince the judge that the police did not have reasonable suspicion to stop your vehicle or lacked probable cause to arrest you for DUI, more than likely both charges will be dismissed.

     Always keep in mind that a DUI conviction, and even a DUI that you received supervision on, cannot be sealed or expunged.  It will stay on your record the rest of your life.  The only way to avoid this is by getting the charge amended, dismissed, or being acquitted at trial.

     This article is in no way intended to be, nor should it be construed as, legal advice and you should not rely on the information herein.  I’m simply sharing some random thoughts and ideas, my experience, and I’m certainly not touching on every issue that is necessary to consider for any serious legal analysis.

© 2020 by Law Office of Jason B. Going

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