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When does a DUI become the felony offense of Aggravated DUI?

dendwyer — Wed, 11 Jan 2012 20:59:09 +0000

There are two categories of crimes in most jurisdictions, misdemeanors and felonies. Misdemeanors are crimes where jail is an allowable sentence, but the maximum sentence is 364 days in jail. Felonies are any crimes were the maximum sentence is greater than 1 year. While misdemeanors are serious and do carry consequences with them, a felony charge can ruin a person’s life. Especially in this economy, it is extremely difficult to get a job with a felony conviction. Not to mention being subjected to serious jail time. Obviously, a felony conviction should be avoided if possible.

So what circumstances lead a DUI to become a felony DUI? First off, a person’s prior DUI history can lead to a DUI becoming an Aggravated DUI. For example:

1. A person convicted of a 3rd or 4th DUI offense (offense includes cases in which a person was sentenced to supervision and cases where a DUI was reduced to reckless driving) is guilty of a class 2 felony, where he/she could receive a sentence of 3-7 years in the Illinois Department of Corrections. Probation is also a possible sentence for a 3rd time offender, but not a 4th time offender.
2. A person convicted of a 5th DUI offense is guilty of a class 1 felony, in which he/she could receive from 4-15 years in the penitentiary.
3. A person convicted of a 6th or subsequent DUI offense is guilty of a class X felony, in which the sentencing range is 6-30 years in the penitentiary.

Second, the circumstances at the time of the DUI arrest could lead to the DUI becoming an Aggravated DUI even for 1st and 2nd time offenders. Here are some examples:

1. If a person has a suspended, revoked, or no license or insurance, then he could be facing a class 4 felony, with a sentencing range of 1-3 years;
2. If a person is driving a school bus with children as passengers, they could be looking at a class 4 felony;
3. If a person is involved in an accident and someone suffers great bodily harm, permanent disability or disfigurement, the he could be facing a class 4 felony, with a sentencing range of 1-3 years if a first time offender, 1-12 if a second offender;
4. If a person is driving in a school zone and there is an accident with bodily harm, he could be looking at a class 4 felony;
5. If a person has a prior reckless homicide conviction, he could be looking at a class 4 felony;
6. If a person is involving in an accident and someone dies, he could be looking at a Class 4 felony;
7. If a person is driving with a passenger under the age of 16 and is involved in an accident with bodily harm, he could be looking at a Class 4 felony;
8. Finally, if the person is driving with a passenger under the age of 16 and is a 2nd time offender, he could be looking at a class 4 felony.
Probation is a possible sentence for all of these felonies

As you can see, Illinois can be a very unpleasant state to get a DUI.

New Statutory Summary REVOCATION created in Illinois

dendwyer — Tue, 11 Oct 2011 20:10:40 +0000

The Illinois General Assembly has created a statutory summary revocation of driving privileges Under 625 ILCS 5/1-197.6. This revocation is for a driver who refuses to submit to chemical tests after a DUI arrest involving an accident that causes personal injury or death to another. Before this law, if you refused tests, your license would be suspended for 1 year if you were a first time offender under 625 ILCS 5/11-500. Your privilege to drive would be returned once the suspension period expired after paying a reinstatement fee. Now, the driver will have an indefinite revocation for at least 1 year. They will have to have a hearing before the Secretary of State to ask for their driving privileges back after the year.

This is significant because it is very difficult and expensive to get the Secretary of State to return your driving privileges after a hearing. Also, the statute defines personal injury as a type A injury. This means if someone is taken to the hospital after the accident, it is a type A injury. Many people go to the hospital after an accident for precautionary reasons. Often times their injuries are very minor. Yet a person involved in such a minor accident is now subject to a statutory summary revocation rather than a suspension.

Lastly, a person can be found not guilty of the DUI criminal charges and still face a revocation because they refused to comply with chemical testing. That is a very harsh punishment for someone who is found NOT GUILTY of the offense that triggered the revocation.

Victim in domestic battery case put in jail in Will County

dendwyer — Wed, 20 Jul 2011 20:18:45 +0000

see http://www.chicagotribune.com/news/local/ct-met-victim-jail-0719-20110719,0,1456646.story Imo, just an awful decision by a judge in Will county. The victim in a aggravated domestic battery case refused to testify against the alleged attacker, who was her boyfriend. Happens every day in courtrooms around the country. Many if not most of the victims of domestic violence continually go back to there abusers several times before they finally say enough is enough and decide to cooperate with the prosecution.

When this happens, while tragic, most of the time the accused abuser gets his case dismissed. This is because unless there is another witnesses to the abuse, often times the prosecutions entire case rests with the testimony of the victim. However, a judge in Will county instead decided to hold the victim in contempt of court for refusing to come to court and testify against the defendant concerning the abuse. The judge set the victim’s bond at $100,000, which was higher than the defendant’s bond. She was taken into custody and is still locked up today.

We have gotten to the point where we are locking victims up in jail. Aren’t our jails full enough?Aren’t there better ways to get the victims of domestic violence to cooperate with the prosecution other than locking them up in jail? For many of these victims, the abuser is the only source of money for them and their children to live on. We should be providing these victims with the support and resources they need to live their lives without the abuser, not putting them in jail.

Does the Fourth Amendment right to be free from unreasonable searches and seizures even exist anymore?

dendwyer — Fri, 15 Jul 2011 03:15:38 +0000

A recent Illinois Appellate Court decision in People v. Neal, No. 1-09-2814 (June 29, 2011) Cook Co., 3d Div. is just another example of the current eroding of the Fourth Amendment. A Chicago Police Officer detains a man who is out on the yelling “blows”. He never sees the defendant with any drugs or money and does not view any hand to hand transactions A search incident to arrest revealed a small amount of heroin. So the defendant was arrested for possession of a controlled substance, a class 4 felony, carrying a potential penalty of 1-3 years in the penitentiary.

Now anyone with any common sense knows that the defendant is selling drugs. That is not the point. Does the defendant not have a First Amendment to talk to passerby’s on the street? Is yelling “blows” enough to seize a person under the Fourth Amendment?

Not to mention the fact that it was lazy police work. Obviously the defendant is selling drugs. Why stop him when he is yelling out, before he conducts a hand to hand transaction. If the officer instead exercised some patience and watched him commit a few hand to hand transactions, he may have been able to make a delivery of a controlled substance charge stick, which is a class 1 felony carrying a potential sentence of 4-10 years in the penitentiary.

Can the State prove DUI based on drugs?

dendwyer — Sat, 09 Jul 2011 02:33:48 +0000

Prosecuting a DUI case based on drugs can be much more difficult for the State to prove than a DUI based on alcohol use if the driver refuses to take chemical tests.

The law states that if a person has any amount of drugs in their system while driving they are guilty of dui. But if the driver refuses to take a chemical test, the state must prove that he or she was under the influence of drugs. This can prove to be difficult because if the state intents to elicit an opinion from the arresting officer that the driver was under the influence of drugs, the officer must be properly qualified to give such an opinion. That means that they must have significant narcotics experience and training. Many traffic cops do not have such experience so their opinion cannot be admitted at trial.

Without chemical tests and an opinion from the officer, their is usually not enough evidence to prove a person guilty beyond a reasonable doubt of driving under the influence of drugs.

Should you plead guilty to DUI in exchange for a rescission of the statutory summary suspension?

dendwyer — Thu, 30 Jun 2011 02:52:22 +0000

Every case is different, and it is often hard to negotiate a rescission even if the DUI case is weak. But what do you do if you have a DUI case that is winnable at trial and the prosecution offers to rescind the statutory summary suspension to induce you to plead guilty? Many people will jump at the rescission, after all, you get to drive immediately and many people need to drive to make a living. Although they will now have a DUI on their record and will have to take alcohol classes and pay a high fine, their license is worth that.
However, you need to keep a couple things in mind when making the decision. Assuming you really can beat the DUI case, it is often beneficial to just deal with the summary suspension. If you are a first time offender, the suspension is either going to be 6 months or a year, but you can get a permit to drive 24/7 if you agree to have a BAID device installed in your car. There is a 30 day hard suspension, but after that if you can afford to get the BAID device in the car, you can drive whenever you want. And the advantages of not pleading guilty are significant. You will not be on the courts supervision, you will not have to take any alcohol treatment classes or pay any fines, and, most importantly, you will not have a DUI on your record. You will not have to disclose it to future employers, and if you pick up another DUI in the future, you will still have the option of getting supervision on that future DUI.
Every person’s circumstances are different, so there is no right answer. Just some things to think about when you and your attorney are deciding how to proceed with the case.

Collateral consequences to a criminal conviction

dendwyer — Tue, 07 Jun 2011 01:49:18 +0000

There are many collateral consequences involved when someone is charged with a criminal offense that many people do not give appropriate consideration to when handling their case. What is a collateral consequence? It is any consequence of the criminal charge outside the court consequences, which I will call direct consequences. An example of a direct consequence would be a person losing his driver’s license after being convicted of a DUI, or going to jail after being convicted of robbery or burglary. Examples of collateral consequences include a person being unable to get a job because he has to disclose his retail theft conviction on job applications, or a person being unable to enlist in the military because of his conviction for domestic battery.
While direct consequences are obviously important (nobody wants to go to jail after a criminal conviction), collateral consequences are also very important to consider in deciding how to handle your criminal or traffic case. They often get shortchanged by both criminal defendants and defense attorneys simply because they are often long term instead of short term. An experienced lawyer will however recognize when collateral consequences need to be accounted for in handling a criminal case.
Certain scenarios regularly appear that involve collateral consequences. If you are young, such as high school or college age, any criminal conviction may hurt your chances down the road in getting a job. Often times a young defendant charged with theft or battery may not realize how this will hurt him down the road, he just wants to stay out of jail today. Nevertheless, it should be considered and discussed with his attorney.
Another situation that arises often is a non-citizen defendant facing a criminal charge. A conviction, and sometimes even supervision, can get a person deported or their visa revoked. Another situation is the defendant who holds a commercial drivers license (CDL) and is convicted or receives supervision on a traffic offense such as DUI or speeding. In addition to the direct consequences of possibly losing his CDL, he may have trouble getting a job driving a truck because he may be uninsurable for the company.
My final example concerns a person who is in college or professional school. He or she may be expelled from school after a criminal conviction, or have trouble applying for a professional license in the future.

Should I Clear Up an Old DUI Warrant?

dendwyer — Mon, 16 May 2011 02:23:13 +0000

The answer is absolutely. That outstanding warrant is keeping you from getting your license. Many people worry that they are automatically going to go to jail because they fled the case a while back. However, each situation is different. If you are able to post whatever the bond is on the warrant, you may not spend a single day in jail. Or, if you have a valid reason for missing court, or if there are other mitigating circumstances that might keep you out of jail, an attorney may be able to get the warrant quashed and recalled for you.

Whenever a bench warrant issues on a DUI case and the original bond is forfeited, the case is reported to the Secretary of State as a conviction. Thus, the Secretary of State will automatically revoke your license, even though the case has not been litigated yet. In fact, if you were eligible for supervision and, thus, your license would not be suspended, quashing and recalling that warrant may mean that your revocation will be lifted and you will be able to drive again.

Also, the case itself may actually be easier to beat if it is an old case. Many people think that the longer the case has been outstanding, the more likely the judge will be mad and really hammer them at sentencing. While it is certainly true that the judge is going to be concerned about where you have been, the fact of the matter is the more time that has passed since the DUI arrest, the harder it is for the police officer or other witnesses to remember what happened. You have to remember police officers make hundreds of arrests a year, so if your case is 10 years old it will be difficult for the officer to remember the case, even if he is able to read the police report. Also, many times the police officer may have retired or is with a different police department. If that is the case, sometimes it is difficult for the Prosecution to get the officer to come to court.

So call my office right away so I can help you take care of that old DUI.

Be Careful What You Post on Social Networking Sites

dendwyer — Mon, 16 May 2011 01:56:43 +0000

Interesting article in the Tribune last week: http://www.chicagotribune.com/news/local/breaking/chibrknews-prosecutors-bragging-on-facebook-leads-to-charges-20110504,0,5797986.story
A woman bragging on Facebook about a battery she committed the night before at a nightclub leads to her being charged with Aggravated Battery. It should be rather obvious, but if you commit a crime and do not get caught, probably not a good idea to talk about it on Facebook!

In fact social networking sites are quickly becoming evidence in many criminal charges. I as a defense attorney have used information that I found on Facebook to impeach witnesses who are adverse to my clients. I have also seen people alleging harrassment or abuse on Facebook when seeking an order of protection. My advise is not to post anything on these sites. But if you must post, make sure that only your friends can view your posts and pictures.

Do I qualify to get my record expunged?

dendwyer — Wed, 04 May 2011 15:06:27 +0000

There is a lot of misinformation out there concerning expungements in Illinois. I get many phone calls from people who assume they are eligible for expungement but they are not. Here, I will attempt to give a little more information about expungements. This is by no means a full explanation of expungements, just some common mistakes I get calls about.

The only cases that can be expunged from your record are as follows:
1. arrest that were dismissed by the State, cases where you were found not guilty;
2. misdemeanor cases where you successfully completed a period of supervision for SOME offenses;
3. felony drug possession cases where you successfully completed expugnable probation;
4. Cases that have been pardoned by the Governor of the State of Illinois.

Most of the cases that I see seem to be #2 and #3. First of all, you must successfully complete your period of supervision or expugnable probation to even qualify for expungement. This means that you must have done all your community service, SWAP, paid all fines or restitution and not picked up any new cases. Even then, there is a waiting period to get certain offenses expunged. If you received supervision for offenses such as retail theft, domestic battery or criminal sexual abuse, you must wait five years. If the offense is battery, assault, criminal damage to property or misdemeanor cannabis, the waiting period is 2 years. If the offense is a DUI, reckless driving or any sexual offense involving a minor under 18, you can NEVER expunge it.

This is by no means a comprehensive list; please consult an attorney if your offense has not been covered. But keep in mind, if you received a conviction or your supervision was terminated unsatisfactorily, the ONLY way to expunge the offense is from a pardon from the Governor. You may however be eligible to seal the offense from employers, but that record will be available to law enforcement for the rest of your life.

With today’s job market as bad as it is, whether or not the offense you are charged with is expungable is definitely a question you want to ask before pleading guilty. I will discuss Sealing in the next blog entry.