The DUI process begins the moment the police officer suspects impaired driving, usually after observing a traffic violation or responding to a traffic accident. The police officer observes the driver's behavior, demeanor and physical appearance, leading to a suspicion of intoxication. If the officer suspects the driver of being intoxicated, he/she will ask the driver to perform a series of standard field sobriety tests. The driver has the right to refuse to take these tests. The driver may also be asked to take a portable breath test. This test is not admissible at trial and the driver again has the right to refuse to take this test.
Once the driver is placed under arrest for driving under the influence of alcohol or drugs and taken to the police station, the driver is asked to take a breathalyzer test, which measures the driver's blood alcohol concentration. The results of this test are admissible at trial provided the police officer follows proper procedures. The driver also has the right to refuse to take this test. If your BAC (blood alcohol concentration) is .08 or greater, you can be charged with a DUI offense. However, just because the state has a breath or blood test against you, it does not mean that you cannot win your case.
Generally, the driver is then released on bond and given a court date as well as notice that their driver's license will be suspended in 46 days.
Driver's License Suspension Period
If the driver is a first time DUI offender as defined by the Illinois Secretary of State, the period of suspension will be for 6 months if the results of the breathalyzer show a BAC of .08 or greater, or one year if the driver refused to take a breathalyzer test. If the driver is not a first time offender, the period of suspension with be one year if the results of the breathalyzer show a blood alcohol concentration of .08 or greater or three years if the driver refused to take a breathalyzer test.
Petition For Your License
Within 90 days of an arrest, the driver can petition the court for a hearing to rescind the suspension and must additionally be provided a hearing within 30 days of filing or on the initial court date. This is a civil matter wherein the burden of proof is on the driver to prove one of four limited elements of improper police procedures.
If the driver is a first time offender, he or she can apply for a MDDP (Monitoring Device Driving Permit) to drive. If granted, a device that measures the blood alcohol concentration of the driver will be installed in the driver's vehicle. These devices are expensive to install and maintain, and the cost is born by the driver. If the driver has had a previous DUI within the last five years, the driver is not eligible for the MDDP permit.
The DUI charge itself is a criminal charge. At court, the driver will appear before a judge and will be advised of the charges. Evidence will be exchanged between the driver's attorney and the prosecutor and pretrial motions will be filed. The driver will enter a plea of guilty or not guilty. This process generally takes 1-3 court appearances. If the plea is not guilty, there will be a trial in front of a judge or jury (driver's choice) where the State has the burden to prove the driver guilty of driving under the influence beyond a reasonable doubt. At trial, the State will call their witnesses, which generally consist of the police officer. The State will then rest their case. Then the driver will be able to present any evidence he wishes, including witness testimony or his own testimony. He is under no obligation to testify in a criminal case. The Prosecutor and the driver's attorney will make arguments to the judge or jury, which will then make a finding or guilty or not guilty.
If the driver wishes to enter a plea of guilty, the driver's attorney will negotiate a sentence with the prosecutor ranging from a period of supervision up to one year in jail. Most sentences will include, among other things, alcohol education classes and treatment and fines and fees. In the case of a guilty plea, there will not be a trial as described in the previous section. The driver is giving up his right to plead not guilty in exchange for a favorable sentence.
If the judge or jury's finding is not guilty, the driver will be discharged without consequence. If the finding is guilty, a sentence hearing will be held. The state will present aggravating factors such as the driver's previous criminal and traffic background to the judge. The driver's attorney must then present the driver in a positive manner, citing specific mitigating and hardship factors to convince the judge to be lenient.
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