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.

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.

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.

Consequences of an out of State DUI

Unfortunately equal protection under the laws does not necessarily apply to someone who gets an out of state DUI. In Illinois, first time DUI offenders can receive a sentence of supervision. If the conditions of the supervision are completed satisfactorily, the Secretary of State will not revoke the DUI offender’s driver’s license. Unfortunately, most states do not have supervision. Thus, if a DUI offender pleads guilty or is found guilty of DUI, it will go down as a conviction on their record. The state will then report it as a conviction to the Illinois Secretary of State. The Illinois Secretary of State will then treat the DUI as a conviction and revoke the DUI offender’s license for a minimum of one year.

Seems unfair right? It certainly is, but in law fairness is rarely an argument you want to pin your hopes on. Therefore, it is a good idea to talk to an Illinois DUI lawyer when you receive your out of state DUI. I would not be able to represent you out of state, but I would properly advise you of the consequences here in Illinois. Then you can make a more informed decision on how to handle the out of state DUI. Perhaps it would make you more likely to take your chances at trial. I could also help you get the ball rolling on getting a Restricted Driver’s License here in Illinois if you do get convicted in the other state. Once you complete your alcohol classes, you may be eligible immediately to get a Restricted Driving Permit for work or school.

Is Court Supervision Always the Right Move?

Often times criminal defendants and their attorneys think that court supervision is the best solution for a client and should always be taken if offered by the prosecution. In most cases, supervision is a very good disposition of the case. It does not involve any jail time. It is non-reporting, so you don’t have to report to a probation officer. Often times it is expungeable from a criminal defendant’s permanent record, so future employers will not have access to the plea.

However, it is still a guilty plea and can have severe direct and collateral consequences. For instance, in Illinois, if you receive supervision on a DUI, it is your one and only bite at the apple. If you ever get another DUI in the future, even if it is 50 years later, you are subject to a mandatory driver’s license revocation. So it is always preferable to beat the case at trial if possible, even if the State is dangling the carrot of court supervision before you.

Another consequence of court supervision is possible deportation. While the court and the prosecutor may not consider the charged offense a serious offense, federal immigration law may. So a person who is a legal resident or an illegal immigrant may face deportation even if they receive supervision on certain offenses. This can result in terrible situations for people. I have seen legal residents who have been in this country since they were children sent back to their country of origin because of guilty pleas!!

Also, while the state of Illinois may view court supervision as a slap on the wrist, the Federal government does not. When a person pleads guilty or is found guilty of a federal offense, the court uses the Federal Sentencing Guidelines as a guide to sentence the defendant. These guidelines take into account the defendant’s criminal history, and supervision counts! Thus, a defendant could end up with a longer sentence on a Federal drug charge because they decided to plead guilty in state court on what they considered a minor charge, such as simple battery or driving on a suspended license.

Another misconception out there is that all supervision cases are expunged. That is not the case. Certain offenses are ELIGIBLE for expungement, however the criminal defendant must actually petition the court for expungement. And there are many offenses that cannot be expunged, regardless of whether a defendant received supervision. Some examples are DUI, Domestic Battery and Reckless Driving.