If you are charged with DUI, it is vital to hire an experienced DUI attorney. The attorneys at Pechter & Pechter LLP understand the complexities of DUI's. Barry Pechter and Scott Pechter will not only aggressively fight your case, but they will explain your options and assist you in making an informed decision. This DUI guide will discuss four topics.
What is a DUI?
What are my rights if I am stopped by the police for DUI?
What is a Statutory Summary Suspension/Revocation and how does it differ from DUI?
What is the process after I am arrested for DUI?
1. What is DUI?
Generally, DUI, or Driving Under the Influence, has two elements. The State must prove (1) Driving, or being in Actual Physical Control of a vehicle AND (2) being Under the Influence of Alcohol, Drugs, or any combination thereof. There are several types of DUI’s. But with each type, the State must prove the above two elements beyond a reasonable doubt.
Types of DUI's
Driving Under the Influence of Alcohol with a Blood Alcohol Concentration (BAC) of .08 or more.
As most people know, the legal limit in Illinois is .08. A person is charged with this type of DUI if they submit to a Breath, Blood, or Urine test and their BAC is .08 or more.
Under the Influence of Alcohol.
A person is considered Under the Influence of Alcohol when, as a result of drinking any amount of alcohol, his or her mental or physical faculties are so impaired as to reduce his or her ability to think and act with ordinary care.
A person may even be charged with this type of DUI if they submit to a Breath, Blood, or Urine test and his or her BAC is under .08.
Under the Influence of any Intoxicating Compound or Combination of Intoxicating Compounds to a degree that renders the person incapable of driving safely.
Under the Influence of any other Drug or Combination of drugs to a degree that renders the person incapable of safely driving.
Under the Combined Influence of Alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving.
There is any amount of a drug or substance or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of a controlled substance.
This type of DUI, similar to the first type of DUI discussed above, merely requires the State to prove beyond a reasonable doubt that the person had drugs in their system, which they normally prove through a blood or urine test. And of course, the State still must prove driving or being in actual physical control of a vehicle.
The person has, within two hours of driving or being in actual physical control of a vehicle, cannabis in his or her system.
However, this type of DUI does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Pilot Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.
It is common for a person to be charged with more than one of these types of DUI’s within the same case.
Generally, DUI is a Class A Misdemeanor but in certain circumstances, may be charged as a Felony. Click here to learn more about Felony DUI, also known as Aggravated DUI. Even Misdemeanor DUI penalties can be very severe. For example, if you are convicted of DUI, the Secretary of State will revoke your driver’s license. If your license has been revoked for DUI, see our Secretary of State License Reinstatement Hearings Section for more information. If a person is found guilty or pleads guilty to a second DUI, they are sentenced to a mandatory minimum of either 5 days imprisonment or 240 hours community service in addition to any other sanction. A person who is a first time DUI offender AND has a BAC of .16 or more is subject to a minimum of 100 hours of community service and a mandatory minimum fine of $500 along with any other sanction. A person who is a second time DUI offender AND has a BAC of .16 or more is subject to a minimum of 2 days imprisonment and a mandatory minimum fine of $1,250 along with any other sanction.
2.What are my rights if I am stopped by the Police for DUI?
If you are stopped by the Police for a DUI, you have certain rights. Those rights are discussed below. It is your right to not answer any question regarding:
Whether you were drinking;
How much you were drinking;
Where you were coming from;
Where you are headed to;
Whether you took any drugs including but not limited to any controlled substances or cannabis;
What time you last ate;
What time it is now.
Be sure to talk to an experienced DUI attorney for a full explanation on what you should or should not say to the officers. Call the lawyers at Pechter & Pechter LLP at (708) 599-4300 to find out more. Standard Field Sobriety Tests (SFSTs): It is your right to refuse to take any Standard Field Sobriety Tests. SFSTs generally consist of the Horizontal Gaze Nystagmus Test (HGN), the Walk and Turn Test, and the One Leg Stand test.
Here, the officers will hold a light to your eyes and ask you to follow the light with your eyes while keeping your head still. This test is commonly used to determine whether you consumed alcohol.
YOU HAVE THE RIGHT TO REFUSE THIS TEST.
Walk and Turn:
The Walk and Turn test is where the officer will ask you to take 9 heel to toe steps forward on a real or imaginary line, turn the exact way they instruct you to, and then take 9 heel to toe steps back. This test is commonly used to determine if you have the mental capacity to follow instructions AND the physical capacity to complete the test without any issues. In short, the officers use this test to determine whether you are impaired.
YOU HAVE THE RIGHT TO REFUSE THIS TEST.
One Leg Stand:
The One Leg Stand test is where the officer will ask you to choose a leg to raise approximately 6 inches straight off the ground, look down and count the way they instruct you to until approximately 30 seconds have passed without putting your foot down. Like the One Leg Stand, this test is used to determine whether you are impaired.
YOU HAVE THE RIGHT TO REFUSE THIS TEST.
Non Standard Field Sobriety Tests: Officers can ask you to take a multitude of other Non Standard Field Sobriety tests such as the Finger to Nose test, the Alphabet Test, and various others. YOU HAVE THE RIGHT TO REFUSE ALL NON STANDARD FIELD SOBRIETY TESTS. Preliminary Breath Test (PBT): Many times, Officers will ask you if you would like to submit to a Preliminary Breath Test to make sure you are okay to drive. YOU HAVE THE RIGHT TO REFUSE THE PRELIMINARY BREATH TEST. Can I still be arrested for DUI if I refuse to answer the above questions, refuse all Field Sobriety Tests, and refuse to take the PBT? Yes, the Officer can still arrest you for DUI. However, as discussed above, the State must prove beyond a reasonable doubt that you were under the influence of alcohol at the time you were driving. And now, the State must prove this without the assistance of questions answered, FSTs, and a PBT. Interview Questions: Normally after the Officer arrests you for DUI, he or she will take you back to the Police Station. There, he will ask you to waive your Miranda Rights and answer various interview questions such as whether you drank, what time you last drank, how much you drank, where you were coming from, where you were going, what time you last ate, what you last ate, among various other questions. YOU HAVE THE RIGHT TO REFUSE TO ANSWER THESE INTERVIEW QUESTIONS. Chemical Tests including Breathalyzer, Blood Test, and Urine Test. YOU HAVE THE RIGHT TO REFUSE TO SUBMIT TO A BREATHALYZER. YOU HAVE THE RIGHT TO REFUSE A BLOOD TEST. YOU HAVE THE RIGHT TO REFUSE A URINE TEST. Summary:
You have the right to not answer any questions about your drinking, where you were going, or any other similar questions.
You have the right to refuse to take any Field Sobriety Tests.
You have the right to refuse the Preliminary Breath Test.
You have the right to refuse to answer interview questions such as whether you were drinking, how much you were drinking, when you last ate, where you were coming from, where you were going to, among other questions.
You have the right to refuse to take a Breath, Blood, or Urine Test.
Be sure to discuss all of this with an experienced DUI attorney to discuss various complexities not mentioned here. Call Pechter & Pechter LLP today at (708) 599-4300 for a no charge consultation.
3. What is a Statutory Summary Suspension/Revocation and how does it differ from DUI?
When you are arrested for DUI there are generally two separate cases that you must deal with: DUI and a Statutory Summary Suspension/Revocation. Basics:
As noted above, DUI is a criminal offense ranging from a Class A Misdemeanor up to a Felony. The burden of proof is on the State and the burden is “beyond a reasonable doubt.”
Statutory Summary Suspension/Revocation:
However, a Statutory Summary Suspension/Revocation is entirely different. First, it is considered a Civil Case and not a Criminal Case. The burden here is on the Defendant and the burden is “by a preponderance of evidence.”
How do I know if I have both a DUI charge and a Statutory Summary Suspension/Revocation? Generally, after you are arrested for DUI, you are given paperwork. Among other documents, you normally receive DUI tickets, a warning to motorist, and a Sworn Report (also known as a Notice of Summary Suspension/Revocation). The DUI tickets denote the Criminal DUI charges. The warning to motorist and the Sworn Report are documents pertaining to the Statutory Summary Suspension/Revocation. A general rule of thumb is if you receive both of these documents, you must deal with both a DUI charge and a Statutory Summary Suspension/Revocation. What is a Statutory Summary Suspension/Revocation? Generally, the Secretary of State Suspends/Revokes your license for a period of time if you either (1) refuse to take the breath test or (2) you take the breath test and blow over a .08. Some of the specifics will be discussed below. Warning to Motorist: The Warning to Motorist is a document that Police Officers read to those who are arrested for DUI. The Warning to Motorist lays out how long the Statutory Summary Suspension/Revocation may last. First, the Warning to Motorist distinguishes a first offender from a non-first offender. In regards to a Summary Suspension, a first offender is someone who has not been arrested for DUI within the last 5 years. First offenders are generally eligible to have a BAID (breath machine) device installed in their car during the entire suspension so that they may drive during the suspension as long as they blow into the machine when required. Second, the Warning to Motorist lays out the possible lengths of the Statutory Summary Suspension/Revocation.
If you refuse or fail to complete all chemical tests requested AND
you are a first offender, then your driving privileges will be suspended for a minimum of 12 months;
You are not a first offender, your driving privileges will be suspended for a minimum of 3 years;
If you were involved in a motor vehicle accident that caused a Type A personal injury (meaning it required immediate medical attention such as severely bleeding wounds, distorted extremities and injuries that require the injured party to be carried from the scene) or death to another, then your driving privileges will be revoked for a minimum of 12 months.
If you submit to a chemical test or tests disclosing an alcohol consumption of .08 or more OR any amount of drug, substance, or intoxicating compound resulting from the unlawful use or consumption of cannabis, a controlled substance, intoxicating compound, or methamphetamine, and
You are a first offender, your driving privileges will be suspended for a minimum of 6 months;
You are not a first offender, your driving privileges will be suspended for a minimum of 1 year.
CDL Holders: If you are a CDL Holder and you either (1) refuse any chemical test, (2) submit to any chemical test which discloses an alcohol consumption of .08 or more, or (3) any amount of drug, substance, or intoxicating compound resulting from the unlawful use or consumption of cannabis, a controlled substance, intoxicating compound, or methamphetamine is found in your system, and
If you have not had a prior 12-month disqualification of your CDL privileges, your CDL privileges will be disqualified for 12 months;
If you have had a prior 12-month disqualification of your CDL privileges, your CDL privileges will be disqualified for life.
For more information on what to do if you are a CDL holder, visit our page on CDL violations.
Please be advised that there are further complexities if you are under the age of 21 or are a school bus driver.
Sworn Report (Notice of Summary Suspension/Revocation): The Sworn Report is the document the Police officer generally hands you, notifying that you will be suspended or revoked and that that suspension/revocation takes effect on the 46th day following the issuance of the notice. The Sworn Report states how long your driving privileges will be suspended for. The Sworn Report also provides a brief summary explaining why the officer had reasonable grounds to believe you were under the influence. Is it Possible to have the Statutory Summary Suspension/Revocation Rescinded? In general, it is possible to have the Suspension/Revocation Rescinded, however, as noted above, the burden is on the defendant to prove “by a preponderance of the evidence” that the officer did not have reasonable grounds to request that you take a breath test. This is a far lower burden than the standard in a DUI trial, “beyond a reasonable doubt.” More specifically, there are generally 5 ways that your suspension could be rescinded including:
You were not properly placed under arrest;
The arresting officer did not have reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle while under the influence of alcohol, and/or other drugs or any combination thereof;
You were not properly warned by the warning to motorist (you were not read the Warning to Motorist);
You did not refuse to submit to and/or complete the required chemical test or tests;
You submitted to the requested tests but your blood alcohol concentration did not indicate a BAC of .08 or more.
4. What is the process after I am arrested for DUI?
The first and most important thing you should do is hire an experienced DUI attorney. Call Pechter & Pechter LLP at (708) 599-4300 to make an appointment. Initial consultations are free.
There are important time restrictions related to the Summary Suspension and therefore, it is important to retain a qualified attorney as soon as possible. The State must provide you with a hearing within 30 days of the date you filed the Petition to Rescind or the first court date, whichever is later. Further, you must file the Petition to Rescind within 90 days of the date of notice of the suspension.
You should explain to us what happened from beginning to end on the day you were arrested for DUI, including, but not limited to, why you were stopped in the first place, whether you took any field sobriety tests, and whether you submitted to any chemical tests.
Even if you did submit to a breath or other chemical test, all hope is not lost. Click on this link to our Facebook page to see a recent example where our client was found not guilty of DUI even though he blew over .08.
After we are hired, we will come with you to court and file our appearance as well as a Petition to Rescind the Suspension.
Then the discovery process begins, where the State provides us with the police reports and any videos of your DUI as well as any hospital and ambulance reports if applicable.
We will then review the discovery with you.
After all of the discovery is acquired and has been thoroughly examined, we will give you our opinion and assist you in making an informed decision as to whether we should file any motions, have a trial before the judge, have a trial before a jury, or, if it is in your best interest, negotiate the best resolution possible.
Once you hire us, we will be there at every step of the way to answer any questions and assist you in making an informed decision.
What should I do if I am charged with DUI?
If you or someone you know has been arrested for DUI, call the lawyers at Pechter & Pechter LLP at (708) 599-4300. We have defended hundreds of DUI’s and will help you through this process.