When Is A DUI A Felony In Illinois?
In Illinois a base level DUI is a class A Misdemeanor offense. However, a driver can also be charged with a felony DUI. See the DUI penalty classification table listed below?
|Class A Misdemeanor||Basic DUI||BAC above .08 or Inebriation||625 ILCS 5/11-501|
|Class 2 Felony||Aggravated DUI||2 prior violations||625 ILCS 5/11-501(a)(2)|
|Class 4 Felony||Aggravated DUI||DUI + DWLS||625 ILCS 5/11-501(a)(2)|
|Class 4 Felony||Aggravated DUI||great bodily harm||625 ILCS 5/11-501(a)(2)|
|Class 3 Felony||Reckless Homicide||DUI + Death||720 ILCS 5/9-3(a)|
A Base Level Illinois DUI Is A Class A Misdemeanor
In order to start understanding how DUI’s in Illinois work, let’s begin with the code.
The Illinois DUI statute is found at 625 ILCS 5/11-501 (Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.) et seq.
The basic (a)(1) and (a)(2) sections provide that
Notice that (a)(1) does not require any proof of inebriation or intoxication. If the state can prove a BAC above .08 they win.
The (a)(2) count requires no BAC evidence but the state has to prove up intoxication or inebriation due to alcohol.
Being Under The Influence Of Compounds or Other Drugs
Later down in the section the code describes non alcohol related DUI charges. The code says,
These are the “catch all” provisions which can include huffing and many other unidentified substances. All the DUI charges described above require proof of inebriation.
Notice controlled substances are not mentioned above.
Any Amount of Controlled Substance
In regards to driving with a controlled substance in your system. The law doesn’t require intoxication, inebriation or any minimum level of drugs in your body.
It’s any amount of a controlled substance in your body, and you are guilty. The law says
DUI For Cannabis Is Different In Illinois
Driving under the influence of cannabis is different. In Illinois the prosecution either has to prove that a driver is under the influence of cannabis, an (a)(4) count, or has a certain level of THC in their system.
The code says
Other Significant Illinois DUI Statutory Provisions
There are other significant statutory provisions that effect DUI’s in Illinois. You can find the most significant ones below.
|Illinois DUI Sentencing Parameters||625 ILCS 5/11-501(c)|
|Revocation After DUI Conviction||625 ILCS 5/11-501.01(d)|
|Illinois Implied Consent Statute||625 ILCS 5/11-501.1 et seq.|
|Admissibility of Chemical Tests (State)||625 ILCS 5/11-501.2|
|Admissibility of Chemical Tests (Hospital)||625 ILCS 5/11-501.4|
|Zero Tolerance Suspension (Under 21)||625 ILCS 5/11-501.8|
|Open Container Prohibition||625 ILCS 5/11-502|
|Illinois DUI Administrative Code||20 Ill. Adm. Code 1286 et seq.|
What Constitutes Probable Cause For A DUI Arrest In Illinois?
In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on the basis of evidence similar to the evidence in this case. In that case, the defendant’s speech was “thick-tongued,” his eyes were glassy, a three-quarters-empty bottle of malt liquor was found in his vehicle, and his breath smelled of alcohol. The defendant also refused to take a breath test.
But see also People v. Day, 2016 IL App (3d) 150852 (January) where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.
Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).
A DUI Charge The Complicated Misdemeanor Offense
Although the vast majority of DUI cases filed in Illinois are class A Misdemeanors, these charges often can get into complicated areas of the law.
DUI’s are considered by lawyers to be a “complex misdemeanor.”
Often in these cases there is more
- scientific evidence
- more digital evidence, and
- more medical evidence presented.
Low level felonies likely won’t have all these different kinds of evidence. Additionally, a litigator must become keenly aware of the
- Illinois Vehicle Code
- The Illinois Administrative Code
- Various Policies of Multiple Police Departments
- Local Ordinances, and even
- Manuals issued by the The National Highway Traffic Safety Administration.
Indeed, very quickly, this “little” misdemeanor charge can become quite complicated for the attorney. And for the accused this “little” misdemeanor can have outweighed consequences that affect employment and financial stability.
So there is a lot at stake here. See also The Illinois Criminal Law Handbook for more of the criminal law basics.
This “Little” Speeding Ticket Case Is A Great Example of DUI Litigation
If you want to understand generally what happens in the litigation of a DUI case. Take a look at People v. Geiler, 2016 IL 119095 (July). This was just a “little” traffic ticket that a pro se defendant litigated all the way the Illinois Supreme Court.
This guy was able to establish that the police did not follow the rules when they issued him a traffic ticket and set a court date. He convinced a trial judge and the appellate court to dismiss his ticket.
The Supreme Court finally had to step in to explain their rules don’t necessarily need to be followed by the police.
So too with DUI’s in Illinois.
There are Illinois Supreme Court rules, statutes, and administrative code rules that govern what police should and can’t do during a DUI investigation. However, many of these rules, statutes, and administrative findings are merely directory and not mandatory.
That means there are generally no consequences for violating the rules.
Directory Rules v. Mandatory Rules
Here’s how the Illinois Supreme Court distinguishes “directory” rules from mandatory rules.
“…a statute [or rule] which specifies the time for the performance of an official duty will be considered directory only where the rights of the parties cannot be injuriously affected by failure to act within the time indicated…”
Citing Hanna, 185 Ill. App. 3d at 409; quoting Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233 (1960).
That’s lawyer talk for saying if a rule doesn’t have consequences built into them for when they are violated well then that’s not a rule.
The main characteristic of a directory rule is that it is considered discretionary (police can follow them if they want). Discretionary rules by definition are not mandatory.
You’ll find many of the “rules” that govern police investigations of DUI’s in Illinois are considered directory in nature and not actually mandatory.
Breathalyzer Reliability In Illinois
The admissibility of breathalyzer test results is governed by standards promulgated by the State Police as dictated by statute. See 20 Ill. Adm. Code 1286.310.
“(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible.”
Interestingly, police in the field don’t have to 100% follow the regulations. A court may still find substantial compliance even if an officer completely failed to observe all the requirements under the code.
This depends on the existence of evidence that compensates for the officer’s inability to say whether, in a given period, the defendant did something that the regulation recognizes as inimical to reliance on the breath-test result.
Field Sobriety Tests (FSTs) Used By Officers To Opine On Intoxication
The National Highway Traffic Safety Administration (NHTSA) has created national standards to be used by law enforcement who employ field sobriety tests to gauge intoxication.
Other jurisdictions have also addressed the same NHTSA-sanctioned field sobriety tests, and their proper administration. However, in order to obtain reliable results the tests depend on being employed correctly.
The improper administration of the field sobriety tests in a case may render the results inherently less reliable, and a trial court is justified in giving those tests less evidentiary weight.
Proving Drug Use Through The Use Of A DRE (Drug Recognition Expert)
The results of a chemical test are inadmissible in a DUI prosecution if the collection and testing of the sample did not comply with section 11-501.2 of the Vehicle Code and the regulations promulgated under its authority. See People v. Hall, 2011 IL App (2d) 100262, ¶ 11.
However, substantial compliance with the collection and testing standards is acceptable unless the process of judging the degree of compliance requires the court to venture into an area beyond its expertise.
Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26
The process of inferring intoxication just from the defendant’s condition and conduct is accepted in Illinois courts. “The opinion of an officer regarding whether a person is under the influence of drugs is circumstantial evidence that may be considered sufficient provided that the officer has the relevant skills, experience or training to render such an opinion.” Workman, 312 Ill. App. 3d at 310; see also People v. Foltz, 403 Ill. App. 3d 419, 424 (2010); People v. Vanzandt, 287 Ill. App. 3d 836, 845 (1997). (Depending on the basis for the officer’s opinion that the subject is under the influence of drugs, the officer might need to be qualified as an expert in order for that opinion to be admissible. See People v. Gocmen, 2018 IL 122388, ¶¶ 34-37.
Sometimes You Do Need A Drug Recognition Expert Opinion
In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required.
A drug-recognition expert is qualified to opine that defendant was under the influence of a combination of central nervous system depressants and narcotic analgesics. Section 11-501(a)(4) requires no greater specificity.
Generally a DRE can identify several symptoms in defendant—
- including slow movements and
- compromised coordination and balance—that are commonly accepted as indicators of an impaired ability to drive
- failure of sobriety tests
A qualified expert DRE can testify these factors are attributable to central nervous system depressants and narcotics analgesics such as antidepressants and muscle relaxants. Some examples of central nervous system depressants include:
- Vicodin and
- Narcotic analgesics are generally opiate based.
A DRE need not identify what quantities of such drugs could cause such effects.
The methodology is designed to yield reliable conclusions independently of chemical testing or estimation of the quantities of drugs present.
The Present State Of Affairs With Warrantless Blood Draws In Illinois
Absolutely, certain law enforcement agencies in Illinois employ “no refusal” weekends. That’s just a systematic set of procedures designed to quickly get warrants for a driver’s blood in the event the drive refuses to provide a breath sample.
Certain holiday and busy weekends are chosen.
Under the law as established by the Supreme Court of the United States this procedure is entirely legal if done correctly.
Missouri v. McNeely
We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013).
In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough.
Birchfield v. North Dakota
A states implied consent scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunk driving suspects. See Birchfield v. North Dakota, 136 S. Ct. 1260 (2016).
We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35).
Don’t Forget About Schmerber
But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). See Schmerber v. California, 384 U. S. 757, 765 (1966).
Then There Is Mitchell v. Wisconsin
Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Thus, exigency exists when
(1) BAC evidence is dissipating and
(2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.
Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.
When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. See Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019.
The Traffic Stop Starts A DUI Investigation
Most DUI investigations begin with an unrelated traffic stop.
Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.
In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.
Illinois Traffic Code on Lane Usage
Section 11-709(a) states that,
“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
Crossing The Lane Will Get You Stopped
Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.
A stop for ILU (improper lane usage) is valid when “a police officer observes multiple lane deviations, for no obvious reason.” Hackett, 2012 IL 111781, ¶ 28. A driver’s multiple touches of a traffic line could can not be considered “lane deviations.” The road’s “twists and turns” provided an innocent (and obvious) explanation for brief touches.
Innocent Mistakes of Law Justify A Traffic Stop
In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.
Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws.
This reflects that the fourth amendment permits government officials to make some mistakes.
Discovery & Other Sanctions in DUI Cases
DUI cases ordinarily should be accompanied with a plethora of video and audio evidence. Video can come from a squad car camera, an on person camera and microphone of the officer and from booking surveillance recordings back at the station.
All this electronic evidence should exist in an average DUI arrest.
This begs the question of what should happen when this evidence is not provided to the defense through the discovery rules.
The correct sanction to be applied for a discovery violation is a decision appropriately left to the discretion of the trial court, and its judgment shall be given great weight. People v. Morgan, 112 Ill. 2d 111, 135 (1986). The trial court is in the best position to determine an appropriate sanction based upon the effect the discovery violation will have upon the defendant. People v. Koutsakis, 255 Ill. App. 3d 306, 314 (1993).
The Latest Illinois DUI Case Law Updates
There’s a lot going in in Illinois with DUI’s. To catch up with the latest Illinois DUI case law and rule changes go here: