Aggravated DUI by Alcohol or Drugs

The Law – 625 ILCS 5/11-501

When you submit to a breath test, all the state has to prove is that the number from the breath test (your breath alcohol level) was .08 or greater. The state does not have to prove that your driving was impair in any way or that you could not think or act with ordinary care due to drinking.

(a) A person shall not drive or be in actual physical control of a vehicle while:

(1) The alcohol concentration in the person’s blood or breath is .08 or more;
(2) Under the influence of alcohol.

(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:

(A) the person committed a violation of subsection (a) or a similar provision for the third or subsequent time;

(B) the person committed a violation of subsection (a) while driving a school bus with persons 18 years of age or younger on board;

(C) the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries;

(D) the person committed a violation of subsection (a) and has been previously convicted of violating Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012 or a similar provision of a law of another state relating to reckless homicide in which the person was determined to have been under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds as an element of the offense or the person has previously been convicted under subparagraph (C) or subparagraph (F) of this paragraph (1);

(E) the person, in committing a violation of subsection (a) while driving at any speed in a school speed zone at a time when a speed limit of 20 miles per hour was in effect under subsection (a) of Section 11-605 of this Code, was involved in a motor vehicle accident that resulted in bodily harm, other than great bodily harm or permanent disability or disfigurement, to another person, when the violation of subsection (a) was a proximate cause of the bodily harm;

(F) the person, in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death;

(G) the person committed a violation of subsection (a) during a period in which the defendant's driving privileges are revoked or suspended, where the revocation or suspension was for a violation of subsection (a) or a similar provision, Section 11-501.1, paragraph (b) of Section 11-401, or for reckless homicide as defined in Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012;

(H) the person committed the violation while he or she did not possess a driver's license or permit or a restricted driving permit or a judicial driving permit or a monitoring device driving permit;

(I) the person committed the violation while he or she knew or should have known that the vehicle he or she was driving was not covered by a liability insurance policy;

(J) the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in bodily harm, but not great bodily harm, to the child under the age of 16 being transported by the person, if the violation was the proximate cause of the injury; or

(K) the person in committing a second violation of subsection (a) or a similar provision was transporting a person under the age of 16.

Aggravated DUI is essentially DUI with an enhanced penalty because of a certain factor was present. The 11 factors that make a DUI “aggravated” are listed above from A – K.

So, for instance, if a person is alleged to be driving while under the influence of alcohol AND there was a passenger in the vehicle who was under age 16, and it was the driver’s second DUI offense, the driver will be charged with “aggravated DUI”.

The proof required for a “regular” DUI still applies, but additionally the State must also prove the aggravating factor.

As set forth on this website, DUI by alcohol is one way a person can be found guilty of driving under the influence. The other ways involve marijuana and controlled substances.

Regarding DUI by alcohol – there are 2 ways a person can be found guilty. The first is by having a blood alcohol or breath alcohol content of .08 or greater.

What you must understand about being charged in this way is that the proof required by the State, beyond a reasonable doubt, is merely A NUMBER. A person could, hypothetically, be driving perfectly, obeying all traffic laws and not being driving erratically. But if the person submits to a breath test and the level is .08 or greater, the person could be found guilty of DUI.

For example, if you are driving, and while you are stopped at a red light, another vehicle rear-ends you. You are clearly not at fault, your driving was perfect. The police come to the scene to investigate, and they smell alcohol on your breath because you had left a bar 15 minutes ago. Once the police smell alcohol on your breath, the investigation begins. You agree to perform field sobriety tests at the scene, and you feel that you did the tests perfectly. Eventually, at the police station, you agree to take a breath test, and the results show a level of .084. Although your driving was perfect and you did nothing wrong, and you may have performed well on the field sobriety tests, you could be found guilty of DUI if the State can prove, beyond a reasonable doubt, that your breath alcohol level was .084. That is because all that matters is THE NUMBER.

Now, there are still numerous ways to successfully defend a charge that is based on THE NUMBER, such as:

  1. The officer had no reason to stop you in the first place;
  2. The evidence of your alcohol level was obtained as a result of an illegal “search and seizure”;
  3. The officer did not properly warn you, as required, of the consequences you face if you submit to a breath test;
  4. The officer did not observe you for 20 minutes before you took the breath test, as required by law;
  5. The officer was not qualified or certified to operate the breath machine;
  6. The breath machine was not properly calibrated, examined and certified accurate;
  7. The results of the breath test are inaccurate because you vomited, burped or something else occurred that would render the breath test result inaccurate or unreliable; or
  8. Numerous other possible defenses to the blood alcohol number.

The second way that you can be found guilty of DUI by alcohol is by the State proving that you were operating a vehicle while you were under the influence of alcohol. “Under the influence of alcohol”, under Illinois law, means that: “as a result of drinking any amount of alcohol, the person’s mental or physical faculties are so impaired as to reduce their ability to think and act with ordinary care”. This is not done by numbers, but is proved through, generally, the testimony of a police officer that: based upon your driving; based upon his observations of you (this encompasses many areas); based upon how you performed on the field sobriety tests (in his judgment); and based upon his experience, you were “under the influence of alcohol” at the time you were operating a vehicle.

It is much more difficult for the State to prove DUI by alcohol this way than by the “NUMBER”. Additionally, there are many more areas of defense that can be argued and brought before the court in an effort to show “reasonable doubt”. If the State’s key witness is the arresting police officer, we are able to cross-examine the officer on a vast number of topics in order to show innocence and reasonable doubt. For instance, we can show, through questioning, that:

  • your driving was not as bad as the officer testified;
  • your speech was not slurred;
  • your eyes looked bloodshot for reasons other than alcohol consumption;
  • your eyes were not bloodshot;
  • your dexterity was normal;
  • your reactions were normal;
  • you did not flunk the field sobriety tests, contrary to the officer’s opinion;
  • the officer administered the field sobriety tests improperly;
  • your memory was excellent;
  • the field sobriety tests themselves are imperfect; and
  • the field sobriety tests are not conclusive.

These are just SOME of the areas that may be available to cast reasonable doubt as to whether you were “under the influence of alcohol” at the time you were operating a vehicle.

Sentence:

FIRST OFFENSE AND ALCOHOL LEVEL IS LESS THAN .16

FIRST OFFENSE AND ALCOHOL LEVEL IS .16 OR GREATER

SECOND OFFENSE AND ALCOHOL LEVEL IS LESS THAN .16

SECOND OFFENSE AND ALCOHOL LEVEL IS .16 OR GREATER

IF AT THE TIME OF OFFENSE, A PERSON UNDER AGE 16 WAS ALSO IN THE VEHICLE

CLASS A MISDEMEANOR

364 DAYS MAXIMUM

CLASS A MISDEMEANOR

364 DAYS MAXIMUM

CLASS A MISDEMEANOR

364 DAYS MAXIMUM

MANDATORY MINIMUM 2 DAYS JAIL – UP TO 364 DAYS MAXIMUM.  CLASS A MISDEMEANOR

MANDATORY MINIMUM 6 MONTHS JAIL – UP TO 364 DAYS MAXIMUM.  CLASS A MISDEMEANOR.

Supervison Possible?  Yes

Supervison Possible?  Yes

Supervison Possible?  NO

Supervison Possible?  NO

Supervison Possible?  NO

Conditional Discharge Possible?  Yes

Conditional Discharge Possible?  Yes

Conditional Discharge Possible?  Yes

Conditional Discharge Possible?  Yes

Conditional Discharge Possible?  NO

Community Service Mandatory?  NO

Mandatory Minimum 100 hours community service required

Mandatory Minimum 250 hours community service OR 5 days in county jail

Community Service Mandatory?  NO

Mandatory Minimum 25 days community service required

Fine: 

$0 to $2,500

Fine: Mandatory Minimum Fine - $500.  

Total fine up to $2,500

Fine: 

$0 to $2,500

Fine: Mandatory Minimum Fine - $1250.  

Total fine up to $2,500

Fine: Mandatory Minimum Fine - $1000.  

Total fine up to $2,500

Mandatory Court Costs?  Yes

Mandatory Court Costs?  Yes

Mandatory Court Costs?  Yes

Mandatory Court Costs?  Yes

Mandatory Court Costs?  Yes

Driver’s License Revoked if Convicted?  YES

Driver’s License Revoked if Convicted?  YES

Driver’s License Revoked if Convicted?  YES

Driver’s License Revoked if Convicted?  YES

Driver’s License Revoked if Convicted?  YES

 

Success Story: We were retained to represent a woman charged with DUI. On the night of her arrest, the arresting officer had followed her vehicle on the roadway, with his squad video camera running to film her “driving erratically”. After stopping her vehicle, he had her perform various field sobriety tests, which were also videotaped. He testified that she failed all of those tests. Additionally, after administering the field sobriety tests, he gave her a preliminary breath test (a device she would blow into that gives her breath alcohol level). She also failed this test. After that, the officer continued to ask her how much she had to drink that evening because he did not believe what she had told him earlier about how much alcohol she had consumed. This time, she ended up telling him she had consumed much more alcohol that she originally stated. All of this was not only on video, but audio was also being recorded.

First, we asked the Judge to strike from the trial any reference to our client’s statement, made after the officer administered the preliminary breath test, about the amount of alcohol she had consumed. We argued that, at that point, even though she was still out on the street, our client was “under arrest” and therefore should have been advised by the officer, before further questioning, of her constitutional rights to remain silent, to have an attorney, and that anything she said could be used against her in court. The judge granted this motion and the statements could not be admitted into evidence at trial. Then, at trial, the officer testified that in his opinion our client was under the influence of alcohol. He based his opinion on our client’s “erratic driving” – which the Judge saw on video; our client’s failure to pass any of the field sobriety tests – which the Judge saw on video; our client’s refusal to take the actual breath test at the station; and his experience in this area. By cross-examining the officer and using different parts of the video, we were able to counter much of the officer’s opinions and claims. The cross-examination was extensive. Our client did not testify at the trial. The Judge then found her “not guilty.”

In this case, despite there being a video and audio, supposedly corroborating the fact that our client was under the influence of alcohol, we recognized issues and arguments, convinced a Judge that our client’s constitutional rights had been violated to keep critical evidence out of the trial, and then effectively cross-examined the arresting officer to obtain from him, evidence that was favorable to our client – to get her a verdict of “not guilty”. We take the time necessary to meticulously review every aspect of the case to analyze whether the State will be able to meet its burden of proof beyond a reasonable doubt. Despite being faced here with a situation that looked hopeless, we scrutinized every piece of evidence and were able to obtain an excellent result for our client. If you want this kind of work from your attorneys….and you should….you should contact us for all of your legal needs. We are experienced, aggressive, detail-oriented attorneys who will work hard for you.

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James A. Payonk, Jr.

~ Attorney at Law ~

10705 W 159th St.
Orland Park, Illinois 60467

(708) 633-6005