In this article...

Watch Our Video
Garrett Miller

The state of Illinois prides itself on its tough Driving Under the Influence (DUI) laws, so if you have been arrested for a DUI charge in Illinois it is critical you inform yourself and contact a qualified DUI attorney.  

In this article we will take a look at some of the pressing questions for someone facing these charges including, DUI misdemeanor or felony, DUI expungement in Illinois, DUI vs. DWI etc.  This is a complicated area of law, with a lot of different considerations, you may feel overwhelmed.  Please use this FAQ to answer your general DUI Illinois questions, and do not hesitate to contact our team of experienced DUI lawyers as soon as possible to help you through this difficult process.

What is a DUI?

In Illinois, DUI or “Driving Under the Influence,” is a criminal offense defined as operating a motor vehicle while impaired by alcohol or any other intoxicating substance.  During a traffic stop where a police officer suspects the driver to be under the influence, they may ask the driver to submit to chemical testing, generally a breathalyzer to determine the presence of alcohol.  A driver is legally considered under the influence if they have a blood-alcohol-content (BAC) of .08 or above.  The presence of a controlled substance, such as methamphetamine, in someone’s blood at any level automatically qualifies that person for a DUI.  The presence of medication likely to impair one’s ability to operate a vehicle will also qualify for a DUI.

Can you be charged with a DUI in Illinois for being under the influence of cannabis?

Yes, with the expansion of medical marijuana as well as the introduction of legal recreational marijuana use in Illinois, drivers who operate a vehicle under the influence of cannabis can be charged with a DUI.  The legal cutoff for a cannabis related DUI is 5 nanograms or more of tetrahydrocannabinol (THC) per milliliter of blood.  

How do police officers check for cannabis consumption in a DUI stop?

In a traffic stop where police suspect cannabis may be in the driver’s system in an unlawful amount, they can put the driver though a “Field Sobriety Test.”  The driver will be asked to leave their vehicle and undergo a series of motor skill tests.  Failing a field sobriety test has similar ramification to undergoing chemical testing and subsequently being found over the legal limit, automatically qualifying someone to be arrested for a DUI.

Can you be charged with a DUI if you are under .08 BAC?

Yes, there are circumstances where an arrest for DUI, despite being found with a BAC below .08, is appropriate.  These includes when the arresting police officer has observed additional evidence that would suggest the driver is unlawfully impaired to drive. For example, the presence of open alcohol containers in the vehicle, or erratic and dangerous driving behavior, together with a .05 BAC would qualify someone for a DUI.

What is the difference between a DUI and a DWI in Illinois?

In contrast to a DUI, a DWI or “Driving While Intoxicated” is an offense that some states use to charge drivers who are otherwise impaired but not under the influence of a substance. This can include drivers who are having trouble staying awake while driving or are otherwise incapable of driving due to their mental state.  Illinois does not have a DWI offense.  Instead, Illinois uses the DUI as an umbrella offense for any sort of impaired driving, meaning you do not have to be intoxicated to be arrested for DUI in Illinois.  If a police officer pulls you over after observing behavior that would suggest your impairment you may still be arrested regardless of lack of substances in your system.

When is a vehicle impounded as a result of a DUI charge?

Your vehicle may be seized and impounded by local authorities during a DUI arrest in a number of circumstances.  If you are being arrested for a DUI while your driving privileges have been suspended for a previous DUI, aggravated DUI, or reckless homicide in association with a DUI, your vehicle will be seized.  Similarly, regardless of the status of your driving privileges if you are being arrested for your third or subsequent DUI or have been convicted in the past for reckless homicide in association with a DUI, your vehicle is automatically impounded.  If you are being arrested for a DUI and you are not qualified to drive in the sense you lack a valid driver’s license, permit, or insurance, this would also qualify your vehicle to be impounded.

What is statutory summary suspension and revocation in Illinois?

Statutory summary suspension refers to a period in which your license will be automatically suspended following an arrest for DUI. In Illinois, this period begins 45 days after arrest.  If the offender has been positively tested at above a .08 BAC the statutory summary suspension period is 6 months for the first offense.  For the second or subsequent positive test for a BAC above .08 in the last five years, the statutory summary suspension period is 1 year.

Can I refuse chemical testing or a field sobriety test?

The result of a breathalyzer or field sobriety test are admissible in the subsequent DUI court proceeding.  You can refuse to take a breathalyzer or participate in a field sobriety test as part of a traffic stop for a DUI in Illinois, however there are considerable penalties for doing so.  The statutory summary suspension period for the first time refusing a breathalyzer or field sobriety test is 1 year, should you refuse again in the next five years the period is a 3-year suspension.

What are the penalties for driving on a suspended license?

Being found driving during the summary suspension period is a serious offense.  The first conviction is a Class A misdemeanor which carries either 10 days in jail or 30 days of community service, a $2500 fine, and double the original suspension period.  Should the offender be found driving again on a suspended license the offense jumps to a Class 4 felony carrying either 30 days in jail or 300 hours of community service.

How does administrative revocation of a license work in Illinois?

Illinois has in place a rapid administrative procedure to revoke the license of a driver who has been involved in a DUI arrest that resulted in significant injury or death.  If the county’s states attorneys where the DUI arrest took place have sufficient evidence, they can provide this evidence to the Secretary of State’s office who can then have the driver’s license revoked without a judicial hearing.  The revocation stays in place until the criminal case is adjudicated or an administrative hearing restores the driver’s rights.

How does a judicial hearing for statutory summary suspension work?

A driver arrested for a DUI can challenge their statutory summary suspension or revocation via a judicial hearing. This hearing takes place either within 30 days of a request for a hearing or at the first court date for the criminal case.  When considering a challenge to a suspension the court examines five issues: whether an arrest for a DUI was made; whether there was reasonable grounds at the time of the arrest for the arresting officer to believe the individual charged with DUI had operated a vehicle while under the influence of alcohol or drugs; whether the driver refused chemical testing; whether the driver registered above .08 BAC or 5 nanograms THC in chemical testing; or whether someone was killed or seriously injured in a crash related to the DUI.

What is the penalty for first time DUI in Illinois?

A first time DUI conviction in Illinois is classified as a class A misdemeanor.  This is the highest level of misdemeanor in the state of Illinois and carries with it a maximum sentence of 364 days in jail and a fine up to $2500.  In the case of DUI, this conviction also results in a one-year driving privilege revocation.  Certain factors will exacerbate this sentence.  If the offender registers with a BAC of .16 or above they will have an additional $500 fine, as well as a mandatory 100 hours of community service, on top of any other penalties.  If the offender was transporting a child under the age of 16, they will face an additional potential six months jail, mandatory fine of $1000, and 25 days of community service.  Note that as of January 1, 2019, if the offender was travelling the wrong way down a one-way road this will automatically qualify as an aggravating factor in their sentencing.

What is a Monitoring Device Driving Permit?  What is a Breath Alcohol Ignition Interlock Device?

First time DUI offenders may qualify for a Monitoring Device Driving Permit (MDDP) if there was no serious bodily harm or death associated with the DUI, and they did not otherwise commit an aggravated DUI.  An MDDP allows unlimited driving during the statutory summary suspension period.  To qualify for the permit in Illinois, the offender will need to pay for the installation of a Breath Alcohol Ignition Interlock Device (BAIID).  This device checks the operators BAC through a breath test before they can operate the vehicle.  Illinois also requires the installation of a camera verifying the identity of the driver as they perform the breath test.

What is a Restricted Driving Permit?

A Restricted Driving Permit (RDP) is a limited basis hardship relief driving permit.  To qualify for an RDP a driver will need to prove that the inability to drive presents a significant hardship, provide a current professional alcohol evaluation, and potentially provide proof of remedial education or treatment.  Note that unlike an MDDP, an RDP is limited basis, meaning that a holder can only drive with certain parameters outside of which if they were found driving, they would be in violation of the terms of the RDP.

What are the penalties for multiple DUIs in Illinois?

In the state of Illinois, similar to a first time DUI conviction, the second conviction for a DUI is a class A misdemeanor.  However, unlike the first it carries a mandatory minimum of 5 days imprisonment or 240 hours of community service.  Driving privileges are revoked for a minimum 5 years if the offender has been convicted of a DUI in the last 20 years and keep in mind in this case the offender would not qualify for an MDDP.  

The third and fourth convictions for DUI are classified as class 2 felonies, with a potential three to seven years in prison as well as up to a $25,000 fine.  A third DUI conviction carries with it a ten-year suspension of driving privileges, again with no opportunity for an MDDP.  With the fourth DUI conviction, driving privileges are revoked for life.  

How long does a DUI stay on your record in Illinois? | Can you get a DUI expunged from your record in Illinois?

As part of Illinois’ tough DUI laws, DUIs stay on an offender’s record for the rest of their lives should they ultimately be convicted.  Note there is no process to have a DUI expunged from an offender’s record in Illinois.  As such, the only way for a DUI arrest to not make a permanent mark on someone’s record is for their criminal case not to end in conviction.

What is court supervision in a DUI case?

Courts in Illinois are allowed the opportunity to grant a driver court supervision in lieu of the mandatory punishments for a DUI conviction.  Note that courts are only allowed to do this once in a driver’s lifetime.  Should a driver receive court supervision, it will be in the court’s discretion to decide the penalties the driver is to face.  Upon successfully completing the court supervision the court then dismisses the charges against the driver.  Court supervision often entails substance abuse classes, community service time, and keeping a clean record for the duration of the supervised period.  Court supervision also avoids the mandatory license suspension that comes with a DUI conviction.  Court supervision is not available if the DUI charge is classified as a felony.

What is an Aggravated DUI in Illinois?

An Aggravated DUI in Illinois is any DUI charge classified as a felony.  With an Aggravated DUI, the mandatory imprisonment or community service period cannot be suspended or reduced at any time.  If someone guilty of an Aggravated DUI receives probation or conditional discharge, they will need to serve a minimum 480 hours of community service or be imprisoned for 10 days.  Note that DUIs incurred during certain driving related occupations, such as a bus driver transporting children 18 or under or a vehicle-for-hire carrying a passenger, qualify as Aggravated DUIs in Illinois.  Aggravated DUIs disqualify the offender from receiving a MDDP or court supervision.

What are the consequences when a death has occurred as part of a DUI?

In Illinois, if a person is killed during the operation of a vehicle that resulted in an arrest for DUI, the driver may be charged with reckless homicide.  Reckless homicide is a class 3 felony.  Conviction carries a minimum two-year imprisonment.

Do I need a lawyer if I have been charged with a DUI in Illinois?

Illinois takes DUIs very seriously. As demonstrated in the preceding FAQ the penalties those charged with a DUI face are significant in terms of both financial cost and loss of freedom.  It is critical that you work with an attorney who is qualified to protect your rights to help you through this difficult process.  

Request a consultation with an experienced Illinois DUI attorney  

The qualified Illinois DUI attorneys at O’Flaherty Law are ready to fight for you.  We know the process and can help you reach a better outcome.  Call our office at (630) 324-6666, email, or schedule a consultation with one of our experienced DUI lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

FREE DUI, Criminal & Traffic DefenseE-Book

Get my FREE E-Book

Similar Articles

Learn about Law