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.

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.

Chicagoland Municipalities Charging Innocent Car Owners for Other People’s Criminal Offenses

Municipalities in the Chicagoland area have been hit by this recession hard. Most are finding creative ways to bring in revenue. One of those ways is to pass ordinances allowing police officers to tow cars and charge administrative fees to people arrested for traffic offenses such as DUI, driving on a suspended or revoked license, or driving without a license.

These fees can be as high as $1,200. A lot of times, the person who is arrested for a DUI or driving without a license or a suspended or revoked license is not the actual car owner. In this case the innocent owner, who did not commit any criminal or traffic offense if left paying the bill. Is this fair? See the attached article: http:

Of course you are entitled to a hearing, but your hearing will be before an administrative hearing officer who works for the village, and has an incentive to find against the owner because they are under orders to bring in money for the municipality.

Another egregious way in which these municipalities are making money is by pulling over undocumented immigrants and arresting them for driving without a license. Often times the police will sit outside of places where it is known that undocumented immigrants work and pull them over after they leave work.

Say what you want about our country’s immigration policy, but something seems wrong with the idea of having people do all of the work that no other Americans want to do, selling them cars, allowing them to purchase insurance policies that everyone knows will never actually pay out on any claims because the person has no license, and allowing them to purchase license plates and registration for the car, and then intentionally pulling them over to get a $1,200 administrative fee for the municipality. This is not fair and it is not right.

Should Strip Club be Liable for Allowing a Patron to Drive Drunk?

The Illinois Supreme Court recently ruled that a strip club could be sued for allowing a patron to drive drunk. The patron then crashed into a car in oncoming traffic, killing that motorist and her unborn child, as well as the passenger in his car. See http://www.suburbanchicagonews.com/beaconnews/news/2110464,Diamonds-strip-club-lawsuit_AU031810.article.

While I feel terrible for the victims and their families for their loss, I believe that only the drunk driver should be held responsible for their deaths. The driver was convicted of aggravated DUI and sentenced to 12 years in prison. The strip club that the driver was at did not even serve alcohol, and it appears that the driver was kicked out of the club.

Shouldn’t owners of private businesses be allowed to kick people out of their establishments for unruly behavior and not have to worry about a lawsuit being filed? Can we really expect business owners to babysit adults and take responsibility for their bad behavior? What should the employees of the strip club have done, called a cab? There is no guarantee that the driver would have gone along with that. He obviously drove to the strip club in the first place, how he was going to get home if he was not kicked out? Obviously he would have driven.

I can understand holding bars and taverns accountable because they serve the drinks. But to blame a private establishment for a driver’s drinking and driving when they were not the ones serving the drinks seems a bit much to me.