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Kevin O'Flaherty

Many factors can go into determining the severity of a DUI and the subsequent penalties for those involved. As a general rule of thumb, passengers are never held responsible for a DUI. But what are a passenger’s rights when pulled over? In addition to addressing passengers’ responsibilities and rights in a traffic stop, we will discuss the complexities of a DUI with a child passenger in this article. Anyone facing charges of DUI with a child passenger in Illinois should understand the severity of the offense and seek representation from an experienced Illinois DUI attorney.  


Does Illinois Require Passengers to Show ID During a Traffic Stop?  


In Illinois, an officer may ask a passenger for identification during a traffic stop; however, if the officer has no reason or probable cause to ask the passenger for identification regarding the ongoing investigation, the passenger is not required to produce the identification.  


Are Passengers Liable for Drunk Drivers?  


Under Illinois DUI laws, only the person operating a vehicle under the influence is responsible. No matter their age, passengers cannot be held responsible for a DUI, regardless of whether they are in the front or back seat.  


There are some unique cases in which a passenger may receive consequences at a traffic stop but are not charged with DUI. An example of penalties a passenger may receive other than a DUI at a traffic stop relates to open container laws. It is illegal in Illinois to have an open container of alcohol or marijuana in the car, even if the driver is not drunk or intoxicated. Penalties for illegal transportation of alcohol in Illinois are a maximum fine of $1,000 and points assigned for violation on a driver’s record. For drivers under 21- and second-time offenders, revocation and mandatory suspension of driving privileges are possible.  


Responsibility of Passengers  

There are some instances where determining responsibility may become tricky such as an officer suspecting that a passenger switched seats with the drunk driver or the officer suspecting you or other passengers gave the driver alcohol. In these instances, it is crucial to seek legal assistance as it is often your story versus the officer’s version of events versus the version of events given by witnesses.  



Passenger Rights During Traffic Stop

Drivers and passengers share the same rights when stopped by the police for a traffic violation. Passengers have these rights:  

  • the right to remain silent  
  • right to remain free of unreasonable searches  
  • right to withhold consent to a search  
  • right to challenge the constitutionality of a stop  
  • right to an attorney if they are being charged with a crime  
  • right to challenge the reasonableness of the search  


It is also important to note that an officer can order the driver and passengers out of the vehicle at any time. A cursory protection search is used to protect officers’ safety. The officer would be left vulnerable to the passenger if they remained in the vehicle during the search. As mentioned above, an officer may ask for the personal identification of a passenger. Still, they are not required to provide proof unless there is probable reason for the officer to need that information related to the ongoing investigation.  

state police pulling over pick up truck in traffic

Minors Passengers in a DUI 

There are significant penalties for even first-time offenders of DUI with a child passenger in Illinois. A person 16 years or under is considered a child passenger. Penalties for a DUI with a child passenger are more severe than for carrying individuals above 16 years old.  


First Time Offender  

A first-time offense is a misdemeanor in Illinois, and the offender faces a mandatory fine of $1,000. In addition, the driver can face revocation of their license and possible jail time of six months to one year.  


If the first offense results in bodily harm to the child, it is considered a Class 4 felony with a sentence of one to three years in prison. Fines go up from $2,500 to $25,000.


Second Time Offender  

A second-time offender will face a Class 2 felony charge. A second offense is when two DUIs with a minor in the car are issued within three years of each other. The offender can receive three to seven years in prison and have their license revoked for three years.  


If the minor suffered any injury, the court could present fines of $5,000 to $25,000. If there is a third offense within five years, the individual can lose their license permanently.  


Child Endangerment in Illinois  

Child endangerment in Illinois is defined as willfully causing or permitting the life or health of a child under 18 to be endangered. This includes knowingly permitting or causing a minor to be placed in situations that endanger the child’s life or death. Many times, when a driver is arrested for a DUI with a child in the vehicle, the police or even the State’s attorney may add child endangerment to the charges. Child endangerment generally, on its own, results in a Class A misdemeanor with criminal fines of $2,500 and up to one year in jail.  


What is an Aggravated DUI?  


Typically, in Illinois, a DUI is a Class A misdemeanor. Certain aggravating factors can cause a DUI to become a felony or an aggravated DUI. The following are offenses that constitute an aggravated DUI in Illinois:  

  • Prior DUI violations  
  • Driving while your license is suspended or revoked  
  • Driving without a valid driver’s license  
  • Driving without valid insurance  
  • Accidents resulting in great bodily harm  
  • Accidents resulting in bodily harm of a minor under the age of 16  
  • Accidents causing a fatality  
  • Driving in a school zone  
  • Driving a school bus with at least one passenger under the age of 18  
  • A second DUI while transporting minors under the age of 16  
  • A second DUI after a previous conviction for an alcohol-related homicide offense  


Each of these offenses has varying penalties, averaging 1-3 years of prison time. If a driver is convicted of an aggravated DUI, the court must sentence them to a minimum of 10 days in jail or 480 hours of community service.  

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.

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