Illinois law allows for an aggravated DUI probation in cases where a death results only if the trial judge finds an extraordinary circumstance. But what exactly is an extraordinary circumstance allowing for probation when someone is killed by a DUI driver?

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The Statute

We are talking about a very specific section on the Illinois Traffic Code.

An aggravated DUI probation refers to the the charge of aggravated DUI listed under 625 ILCS 5/11-501(d)(1)(F) which references the sentencing provision located under 625 ILCS 5/11-501(d)(2)(G).

This aggravated DUI is described this way:

“(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if…(F) the person in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was the proximate cause of the death…”

625 ILCS 5/11-501(d)(1)(F).

The sentence provision in question goes on to state that:

“(G) A violation of subparagraph (F) of paragraph (1) of this subsection (d) is a class 2 felony, for which the defendant, unless the court determines that extraordinary circumstances exist and require probation, shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person; or (ii) a term of imprisonment of not less than 6 years and not more than 28 years if the violation resulted in the deaths of 2 or more persons.”

625 ILCS 5/11-501(d)(2)(G).

Aggravated DUI Probation

These listed sections of the traffic code can be interpreted this way:

A trial judge may grant probation to an offender convicted of aggravated DUI when a person has been killed only if the judge finds that there extraordinary circumstances to justify the probation, otherwise a prison sentence is mandatory.

See also the Illinois DUI Resource Page.

Uphill Battle for Probation

These provisions in the law have always made me pessimistic that probation would ever be given by a judge sentencing an offender convicted of a DUI when there was a death involved.

I personally have never seen probation actually granted in a real life case that I was involved with or that was handled by an attorney I was acquainted with.

That is until I came across the research conducted by attorney Anthony W. Vaupel. Anthony did his homework on this issue and hunted down cases in the record where a trial judge actually did grant aggravated DUI probation in cases with a death.

Attorney Anthony Vaupel Did His Homework

Anthony Vaupel is criminal law attorney. Tony currently practices law in the state of Washington.

At the time of this interview he was employed an attorney at Barash & Everett, LLC in Galesburg, Illinois. He authored the article “When DUI Causes Death: What ‘Extraordinary Circumstances’ Justify Probation?” Published by the Illinois Bar Journal. 

Examples of Cases Where Probation Was Granted

Tony does a great job of highlighting the cases where probation was granted. Here are the cases cited in the article:

• People v. Gomez, Cook County 2007 CR 23709
• People v. Burgess, LaSalle County 2008 CF 752
• People v. Lorusso, Kane County 2009 CF 1775
• People v. Palmer, Peoria County 2011 CF 1206
• People v. Patel, Stark County 2013 CF 6

Gomez

This case involved a 17 year old who was drinking with his father. Dad told the defendant to drive because, of course, father was intoxicated. There was an accident that lead to the death of the dad.  

Burgess

Defendant Burgess was a mother with her four children in the car. She was driving with a BAC of .23 when she had an accident with another motorist. One of her kids was killed. The court felt it could not punish Defendant any more harshly than the punishment of losing a child. Her term of probation still included some county jail time.

Lorusso

This Defendant was perhaps was the least sympathetic. The factual basis revealed that he was belligerent with the police, was spitting blood at officers and told the police that he did not care about his passengers. It was one his passengers that was killed. By the sentencing hearing, Defendant had changed his tune. The court was informed of his change in attitude and remorse. 

Palmer

This defendant suffered from hypoglycemia when his car crossed the center line and struck the victim’s car head-on. There was evidence he was having a hypoglycemic episode at the time of the accident. Unfortunately, he also had cannabis in his system.

Patel

This was another mother who accidently killed a child. This was a single car accident. The father and other siblings all testified they did not want to see their mother to go to prison. Additionally, her business would fail if she was imprisoned. Again, the court felt it could not punish her more harshly than the self imposed death of her child.

Judges Probably Not Aware

Tony and I discussed the likelihood of judges being aware of the fact that other judges have imposed probation in these cases.

The general consensus is that most judges probably are not aware that other judges similarly situated have in fact found extraordinary circumstances and imposed a sentence of probation. Tony went the extra mile and tracked down transcripts from the actual cases cited above. I think this an extremely persuasive way to convince any trial judge to pull the trigger on probation.

Let’s face it these are tough cases.

Even without the “extraordinary circumstances” language in the code, prison in a sentence with dead victim is always on the table and a likely outcome. 

Remove the Hesitation

When, the mitigation is there, a sentencing judge may instantly wish to sentence an offender to probation but feel that they can’t under the law. This is when the hesitation to impose probation begins.

These are the cases where the extra work in hunting down transcripts from other cases could make the difference.

If the court perceives that they are not being asked to do something rare or unprecedented, they are much more likely to grant probation when appropriate.

Additionally checkout this Illinois Sentencing Resource Page.