I Won My DUI Case, But My License Is Still Suspended?!

 
 

So, you won a “not guilty” on your DUI case and now it’s time to get your license back, right?  Not so fast. 

In Illinois, a DUI charge launches two separate proceedings:

1) The more obvious proceeding is the criminal case, in which the State must prove the defendant guilty beyond a reasonable doubt. 

2) The not-so-obvious one is a civil statutory summary suspension hearing. 

Summary suspension hearings are triggered by an automatic suspension of a DUI defendant’s driving privileges. (Click here to read our blawg on automatic statutory summary suspensions!) The summary suspension hearing is requested by the defendant (or, more likely, the defendant’s attorney) in an attempt to lift the automatic suspension of the defendant’s driving privileges. As mentioned above, these hearings are civil, not criminal. 

What’s the difference between the criminal and civil proceeding? 

In a criminal case, a defendant’s guilt must be proven beyond a reasonable doubt. In a civil case, however, the standard of proof is “by a preponderance of the evidence,” which basically means more likely than not. Since it is the defendant requesting the statutory summary suspension hearing, it is the defendant who must show, by a preponderance of the evidence, that the summary suspension should be lifted. If the defendant either fails to meet this burden, or if the defendant simply doesn’t request a hearing, the suspension of the defendant’s driving privileges will stay in place.

Okay, what does all this mean?

Basically, it means that a defendant can “win” the DUI case because the State failed to prove him/her guilty beyond a reasonable doubt, but still lose his/her driving privileges because the defendant either “lost” the summary suspension hearing or did not request one.

Summary suspension hearings happen very quickly, so it is important to speak with an attorney as soon as possible.  If you have been charged with a DUI or have had a statutory summary suspension issued against you, contact the Criminal Defense Group at (773) 893-0252.

You Can Lose Your License Before Being Found Guilty of a DUI!

 
 

You read that right. In Illinois, a person charged with a DUI can lose his/her license before the DUI case is resolved.  This is because Illinois has something called a “statutory summary suspension,” which is an automatic suspension imposed on the license of a person who fails to take, or refuses to submit to, a chemical (intoxication) test. 

How is that even legal?

Statutory summary suspensions are explicitly allowed by law (625 ILCS 5/11-501.1), and there are a couple circumstances where a statutory summary suspension can be instated. 

a) The first possibility is if a defendant submits to a chemical test (e.g., a breathalyzer, blood, or urine test) and that test shows intoxication over the legal limit (e.g., 5 nanograms of THC per milliliter of whole blood, 10 nanograms of THC per milliliter of another bodily substance, or a trace of other drugs (including medications)).

b) A second possibility is for the suspension to be put in place is if a defendant refuses to submit to chemical testing. 

How long can they suspend my license for?

The length of the suspension depends on whether or not the accused submitted to or refused chemical testing.

  • If a person submitted to chemical testing, but failed, his/her license will be suspended for six months for a first offense* and one year for subsequent offenses that are within five years of the first.
  • If a person refused chemical testing, his/her license will be suspended for one year for a first offense* and three years for any subsequent offenses within five years of the first.  Although the suspension length may be longer for a refusal, refusing chemicals tests may help in your DUI defense.

Can I fight a summary suspension?

Yes, but it is very time sensitive, so it is highly recommended that you retain an attorney as soon as possible.

A criminal defense attorney may be able to fight to have the summary suspension rescinded.

If you have received a suspension, call the Criminal Defense Group at (773) 893-0252 as soon as possible, so that we can start the fight for your license!

* Defendants who are on their first offense may be eligible to receive a monitoring device driving permit.

Asked to Blow Twice in Illinois? Here’s Why.

 
 

In Illinois, police officers often ask persons suspected of driving under the influence (DUI) to take two different breathalyzer tests. 

1.      The preliminary breath test (PBT) is taken in the “field,” meaning that it is done prior to being arrested. 

2.      The evidentiary breath test is conducted at a police station after an arrest.

If a police officer already had a driver blow in the field, why would she have him do it again at the station?

The reason for multiple tests is that Illinois courts only admit the PBT in limited circumstances.  PBT results can generally be used for two reasons: (1) as evidence at a summary suspension hearing; and (2) at a hearing deciding whether or not the arresting officer had the necessary probable cause to arrest the driver for a DUI.  Drivers in Illinois have the right to refuse to take the PBTs.

What does this mean for you?

If you submit to a PBT, the PBT results cannot be used by a prosecutor at your trial for a DUI.  However, that is where the evidentiary breath test comes in.

Evidentiary breath tests are generally conducted at a police station after a driver has already been arrested for a DUI.  However, these breath tests can also be done at police check points with approved portable equipment.  The standard for equipment and procedures involved in an evidentiary breath test are more stringent than those of a PBT, so Illinois law allows them to be used by a prosecutor at a defendant’s trial for a DUI.

In summary…

Even if you have previously submitted to a PBT, that does not mean you should also submit to an evidentiary breath test. Deciding whether or not to submit to an evidentiary breath test in Illinois involves weighing many factors.  If you submit, the prosecutor has damning evidence to use at your trial.  If you refuse, your license can be suspended and the prosecutor may be able to argue at trial that you only refused because you knew you would fail.

If you are accused of driving under the influence, call the Criminal Defense Group, LLP immediately at (773) 893-0252.  Fighting a DUI, especially one where you submitted to a breath test, is a very technical process, and you should have an attorney with you every step of the way.

New Year, New Laws

The beginning of 2017 brings with it approximately 200 new laws to Illinois! Below are a few of the notable criminal laws that will be effective as of January 1, 2017.

 

Drug Court Opioid Abuse (HB 5594)

If a defendant needs opioid abuse or addiction treatment, the court must require the defendant to participate in prescribed drug treatments under the care of a licensed physician

Criminal Identification Act (HB 5723)

Provides that a person convicted of operating a vehicle without an insurance policy shall be guilty of a petty offense instead of a business offense

Taking of Bail by Peace Officer (SB 2252)

Requires police to accept currency (cash) for bail

Cell Site Simulator Device Use (SB 2343)

Law enforcement may only use cell site simulators to locate or track the location of a communications device

Although there are limited exceptions, the agency seeking the use of cell site simulators must first get a court order allowing its use

Criminal Damage to Property (SB 2907)

Increases the damage to property amount from $300 to $500 for it to be a Class 4 felony

Approaching Disabled Vehicles (HB 6006)

Requires vehicles to change lanes when approaching a car that has hazard lights on

Order of Protection: Electronic Filing Pilot Program (HB 6109)

The Illinois Supreme Court may now establish a pilot program that will allow electronic filing of petitions for temporary orders of protection

Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act (HB 4264)

For the initial renewal of a cosmetologist’s license, and for subsequent renewals after that, one hour of continuing education on domestic violence and sexual assault awareness will be required

Law Enforcement Policies (HB 5538)

During initial training and every five years after that, law enforcement officers will receive education on how to help victims of domestic violence. This will include being able to spot both physical and psychological signs of abuse.

Expungement of Juvenile Law Enforcement & Court Records (HB 5017)

Persons with juvenile records are now able to petition to expunge those records at any time

The court must grant the request automatically if the person was never charged, if the charges were dismissed, if the person was not found delinquent, if the person was given supervision and completed it successfully, or if the offense (if committed by an adult) would have been a Class B or C misdemeanor or a petty/business offense

Sex Offenses & Sex Offender Registration Task Force (HB 5572) created

Juveniles: Kinds of Sentencing Orders (HB 6291)

Minors found guilty of violating the Illinois Controlled Substances Act shall not be committed to the Department of Juvenile Justice for Class 3 or 4 felony violations unless it is their third or subsequent finding of a violation of probation for not compling with court ordered treatment/programming

Duties of Public Defender (SB 2370)

 Minors under the age of 15 charged with murder or sexual assault must be represented by counsel throughout interrogation

Carrying a Gun with a Concealed Carry License Can Still Land You in Serious Trouble

 
 

On July 9th, 2013, Illinois became the last state to enact a law that allows for the concealed carrying of firearms.  Up until that point carrying a firearm in Illinois (except for in certain situations, like hunting) was prohibited.  Many gun owners welcomed the new concealed carry law and quickly applied for a concealed carry license.  What gun owner wouldn't want the license? It allows them to bring their firearm with them everywhere, right? 

In fact, no.  While the Illinois concealed carry law permits license holders to carry a concealed weapon in many places, it prohibits carrying a firearm in a lot of other locations. The following are examples of a few of the locations where the carrying of a firearm is prohibited, even with a concealed carry permit:

  • on school grounds;
  • at daycare facilities;
  • at congressional buildings;
  • at courthouses;
  • at hospitals or nursing homes; and
  • on public transportation.

The law also allows any owner of private property to prohibit concealed carrying on their property, so long as they post a sign stating as much.  

So what does this mean for the Illinois concealed carry holder?  It means that, while you may have met all the requirements to get the concealed carry license in Illinois, you can still get in a lot of legal trouble for bringing a firearm into the wrong place.  

What kind of legal trouble can a concealed carry license holder get into?  

Generally, the concealed carry law labels any violation of the Firearm Concealed Carry Act (430 ILCS 66/1) as a Class B Misdemeanor for the first offense and a Class A Misdemeanor for any subsequent offense.  However, that isn't all.  Carrying a concealed weapon while under the influence of drugs or alcohol can increase the charge to either a Class A Misdemeanor or Class 4 Felony.  These punishments also have a $150 fine that must be paid for a violation.  Lastly, the law requires a six month suspension of a person's concealed carry license for a second violation and for permanent revocation of the license after a third violation.

What does all of this mean? Basically, be aware of the areas where you plan to carry a concealed firearm and always keep an eye out for the 4" by 6" sign denoting that carrying a concealed weapon is prohibited (an example of the sign can be seen at the top of this post).

Weapons charges are complex.  If you are charged with a violation of a firearm law, call the Criminal Defense Group right away at (773) 893-0252.

In Illinois, You Can Get a DUI Without Even Getting Behind the Wheel!

 
 

Most people associate a DUI with driving while drunk.  That makes sense, seeing as how DUI stands for "Driving Under the Influence."  However, the law in Illinois isn't so clear.

In Illinois, a DUI charge alleges (1) that the defendant (driver) was under the influence of drugs or alcohol and (2) that the defendant (driver) was driving or in actual physical control of a vehicle.  This blog focuses on that element of "actual physical control."

It is well settled that driving a vehicle on a public street is considered having actual physical control of a vehicle, which makes perfect sense.  So many people believe that they can simply sleep off their drunken state in their car because not starting the car means that they aren't in control of their vehicle, right?  Sorry to say, but that is not the case in Illinois.  

Illinois has made it clear that a person doesn't need to start their car to be in actual physical control of it.  Actually, Illinois law shows that you do not even need to be in the driver's seat to get convicted of a DUI.  There have been convictions for DUIs in Illinois where the "drivers" were either sleeping in the front or back seats of a vehicle while under the influence of drugs or alcohol.

What does this mean for you?  Well, basically, simply being anywhere in a car, with the keys to that car, while drunk or under the influence of drugs is enough to be convicted of a DUI.

A DUI/DWI charge should never be taken lightly.  What may seem like a simple case can become very complicated. If you are charged with a drunk driving violation, call the Criminal Defense Group at (773) 893-0252.

"Blackout Wednesday" - Watch Out for DUIs Over Thanksgiving

 
 

Police departments and prosecutor offices all around the Chicagoland area are preparing for for one of the most popular drinking nights of the year, dubbed "Blackout Wednesday."  Accordingly, the Criminal Defense Group urges everyone to drink responsibly.  Law enforcement officers throughout the state have already announced their intent to crack down on anyone caught driving under the influence.

Below you can read about how some areas in Illinois will be cracking down on drunk driving.  This list shows how police departments in the Chicagoland area will be reacting to the increased drinking over Thanksgiving weekend.  Please drive safe and drink responsibly. 

Kane CountyThe Kane County State's Attorney's Office has announced that they will be working with judges and police departments throughout the county in order to get expedited search warrants.  These search warrants will allow law enforcement to administer both blood and breath tests to drivers suspected of driving under the influence. 

The Saint Charles Police Department has been performing DUI checks since November 17th and the department has stated that they will continue to do so until after the Thanksgiving holiday.

The Geneva Police Department has joined in this movement by allocating two additional police officers to the patrols tonight.

Naperville Police Department will be employing special patrol units that will be focusing on enforcing seat belt and impaired driving laws throughout its jurisdiction.

Joliet's Police Department will be establishing checkpoints throughout the city, and will also be saturating the town with law enforcement in an attempt to crack down on violations of seat belt and drunk driving laws.

The Oak Lawn Police Department has stated that they will show zero tolerance for anyone who chooses to drive drunk.

If you are charged with a drunk driving violation, call the Criminal Defense Group at (773) 893-0252.


Big Changes to Illinois Marijuana Laws | How do they affect you?

 
 

On July 29, 2016, Governor Rauner signed into law changes to the Cannabis Control Act (720 ILCS 550/4), which became effective immediately.  What does this mean? Basically, the new law changed how possessing certain amounts of weed can be charged.  First, let’s take a look at the old law.

Prior to July 2016, possessing ten grams or less of weed was a Class B Misdemeanor.  As such, being convicted under the old law could result in a sentence of up to six months in jail and a fine of up to $1,500. So, what changed?

The changes to the Cannabis Control Act basically turned what used to be a criminal charge into what is now a civil penalty.  What is a civil penalty?  Civil penalties are penalties for civil infractions, like speeding.  Under the new law, possessing up to ten grams of marijuana brings with it a fine of between $100 and $200.  Also, under the Illinois Supreme Court Rule 588, a person may submit a payment of $120 –for each violation– in lieu of a court appearance. This process is similar to how courts have handled minor traffic violations for decades.

Does this mean that if you have less than ten grams of weed you can’t be charged more than $200 per violation? Unfortunately, no.  While the new Cannabis Control Act provides a state-wide fine for the possession of ten grams or less of marijuana, the ordinances of other municipalities (e.g., counties and cities) may provide for a higher fine.  The government gets to choose which law it uses.  These ordinances may be even more severe than simply having a higher fine attached to possessing marijuana.

How can municipal ordinances make it worse?  Under our reading of the current legislation, possession of drug paraphernalia may be considered a civil infraction, so long as the person is violating the Cannabis Control Act (e.g., possessing ten grams or less of weed) at the same time.  So how do these municipal ordinances play a role? If a person is charged with a violation of a municipal ordinance, rather than a violation of the Cannabis Control Act, the separate possession of drug paraphernalia can be charged as a Class A Misdemeanor under the Drug Paraphernalia Control Act (720 ILCS 600/3.5).  This type of violation carries all of the penalties of a Class A Misdemeanor violation plus an additional fine of at least $750.

The new Cannabis Control Act appears very favorable for people charged with possession of ten grams or less of marijuana.  However, it is still wise to consult with an attorney regarding any weed or paraphernalia violations.