When does a DUI become the felony offense of Aggravated DUI?
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
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.
Can the State prove DUI based on drugs?
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?
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
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?
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.
Do I qualify to get my record expunged?
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.
Drug Sniffing Dogs
Interesting article in the Tribune today detailing how drug sniffing dogs are not always correct in alerting for drugs on a traffic stop. See http://www.chicagotribune.com/news/local/ct-met-canine-officers-20110105,0,6649157,full.story
This is certainly an alarming problem because the Supreme Court has stated that the police can have a drug sniffing dog sniff the outside of a car on a traffic stop without probable cause. They have concluded that such activity is not a search and is therefore not protected by the 4th amendment.
The article also states that according to their statistics, the amount of false alerts for drugs by these dogs is even worse for Hispanic drivers. A lot of this is due to there being no certification requirements for either the dog or the dog handler. Often times the handler, if he is so inclined, can cause the dog to alert. Thus, the handler is passing his biases on to the dog. It then just becomes another example of police racially profiling drivers.
This is a huge problem because there appears to be many innocent people being subjected to intrusive and embarrassing searches when there are not in fact drugs in the car. This can also come into play in a felony or misdemeanor criminal case where the dog falsely alerts drugs, but then an actual search of the car does not reveal any drugs but instead reveals a gun, or an open bottle of liquor, or gives the officer reason to start questioning the driving about a possible DUI. The courts would find such searches constitutional because of the dog’s alert even though no drugs were ultimately found.
The Illinois General Assembly should pass some standards or certification requirements to drug sniffing dogs and their handlers to alleviate this problem.
Timeline of a Criminal Case (Part 4)
The next stage in the progression of a criminal or traffic case is a bench or a jury trial. If the matter is set for a bench trial, a judge will hear all of the evidence introduced during the trial and make a finding of guilty or not guilty. In a jury trial, 12 people from the community are selected by the prosecutor and the defense attorney to hear all of the evidence at trial. At the close of the evidence, the jury will retire to the jury room, elect a foreperson, and deliberate on the defendant’s guilt or innocence. The jury must come to a unanimous decision, meaning all jurors must agree with the finding of guilty or not guilty. If the jurors are unable to make a unanimous decision, the judge will declare a mistrial and set the matter down for a retrial.
At trial, it is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. The defendant has no burden to prove anything, including his innocence. He or she can sit there and not put on any evidence during the trial and rely on the prosecution’s inability to prove him or her guilty beyond a reasonable doubt.
The trial will begin with opening statements by the attorneys where they will summarize what they believe the evidence will show. The prosecution then will get a chance to present witness and any relevant physical evidence in an attempt to prove their case. Once the prosecution rests their case, the defense attorney will make a motion for a directed finding. This motion essentially asks the judge to throw out the case for lack of evidence. If the judge grants this motion, the case is dismissed. If the judge denies the motion, the defense then has an opportunity to present any witnesses or relevant physical evidence in their case. The defendant may or may not choose to testify in his own behalf. After the defense rests their case, the prosecution is given the opportunity to present evidence to rebut the defense’s case. After both sides rest their case, both sides will get an opportunity to present closing arguments to the judge or jury.
After closing arguments, if it is a bench trial the judge will make a ruling of guilty or not guilty on the case. If a jury trial, the jurors will be given written instructions on the law, which are prepared by the attorneys. They will then retire to begin their deliberations.
If the defendant is found not guilty after the trial, the case is over. If the defendant is found guilty, the case will either proceed immediately to a sentencing hearing, or the case will be continued for a sentencing hearing after a pretrial investigation is done.
The next and final blog concerning the timeline of a criminal case will be the sentencing hearing.
Timeline of a Criminal Case (Part 3)
The next stage of a felony criminal or traffic case is the arraignment. It is at this hearing where the defendant is read the formal charges against him or her. The defendant must then enter a plea of guilty or not guilty. If the plea is guilty, either through an agreement negotiated by the defendant’s attorney with the prosecutor, or a blind plea, the judge will admonish the defendant about the rights he or she is giving up by pleading guilty. The defendant will then either be sentenced on this date if a pretrial investigation is waived, or the case will be continued for sentencing.
More often than not at this stage the plea the defendant will enter will be not guilty. If that is the case, the defendant’s attorney will make a motion for discovery. This is a motion for the prosecution to tender all evidence that they anticipate using at trial as well as any other relevant evidence. For example, if the defendant is charged with a aggravated DUI, he or she is going to want to make a motion for, among other things, all police reports generated, a copy of the log sheet for the breathalyzer used by the police, a copy of any audio or video recordings of the alleged erratic driving or of the defendant performing field sobriety tests, any medical reports concerning the defendant’s blood or urine that was tested, and possibly a copy of any 911 calls made concerning the defendant’s driving.
The prosecution will also make a motion for discovery asking for any evidence the defense intends to use in their defense. The case will then generally be continued for a status hearing so that the defense attorney and the defendant can review the prosecution’s evidence and make a more informed decision about whether to proceed to trial or to negotiate a plea bargain with the prosecutor.
The defense attorney will also file an answer following the arraignment in which the defendant admits or denies all allegations laid out in the information or indictment. If the defendant is going to raise any affirmative defenses, such as self defense, alibi, or necessity, it must be raised in his or her answer.
Eventually after discovery is complete, the case will be set down for a bench or jury trial or a plea of guilty.
