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Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.

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Being pulled over and finding yourself charged by the police with drunk driving can be a horrible end to an otherwise fun evening. Although there is no excuse to drive while intoxicated, it can happen to anyone. All it takes is a momentary lapse in judgment.

What, then, are your rights and what should you do if you are ever charged with driving while intoxicated – often referred to as DUI or DWI?

First, let's talk about the basics. In Illinois, you can be charged with driving under the influence if your blood alcohol concentration ("BAC") is 0.08 or more. In addition, even if your BAC is under .08, you can still be charged if the arresting officer believes you are under the influence of alcohol or any intoxicating substance, or combination thereof, to the extent you are unable to safely drive. Finally, you can be charged with DUI for driving with any illegal substance in your body. By far the most common scenario involves alcohol, and that's what this article will concentrate on.

I'm going to assume that we all know the type of driving behavior that will result in a stop. Assume, then, that you have drawn the attention of a law enforcement officer and are stopped for suspicion of drunk driving. What should you do?

First, you need to know that you don't have to answer any incriminating questions. Feel free to say that you want to speak to an attorney before answering any questions. On the other hand, if you have had just one beer, it's probably best to tell the officer that's why you smell like alcohol.

Typically the officer will ask you to perform a field sobriety test ("FST"). Examples include the heel-to-toe test, the one leg stand, etc. Whether you pass such a test is left to the officer's subjective judgment. Accordingly, because there is no law that requires you to perform an FST, you might want to politely decline. Remember, the results of the FST may be used against you in court.

On the other hand, there are laws that require you to submit to either blood or breath tests. If you refuse the officer's request to take such a chemical test, then Illinois law requires that your license be suspended for six months – even if you were sober. This is called "statutory summary suspension." In many such instances, however, you will be eligible for a "judicial driving permit" so that, for example, you can drive to and from work. This permit may be only issued after the first 31 days of the suspension, but is not available to a repeat offender.

Statutory suspension also applies if you take a chemical test and are found to be intoxicated. In this situation, the suspension is for three months. Judicial permits are also available.

Statutory summary suspensions may be challenged for a whole host of reasons. There is a well-developed body of law in this area, and it's entirely possible that your fact situation may result in the suspension being dismissed. Consult with an attorney well versed in this area of the law.

The statutory suspension process is just one aspect of the legal problems that drunk drivers face. The other facet involves the actual criminal charge. If you are convicted of driving under the influence, your license will be revoked for one year, and for five years if due to a second offense committed within a twenty year period. Things get much worse for three-time offenders – a ten-year revocation. It is possible to get a so-called "restricted driving permit" that allows limited driving for employment, education or medical care. The likelihood of receiving this permit, and the restrictions imposed, depend on your previous driving record.

Regarding the actual criminal charge, conventional wisdom suggests that it's harder for the state to obtain a conviction if the suspected driver refuses a chemical test. (By the same token, it's also easier for the state to convict you if you tell the officer how long you have been drinking or how many drinks you consumed!) But let's say that you decide to submit to a test. You may be offered the choice between a blood test and a breath test (note that the arresting officer doesn't have to provide you a choice). That same conventional wisdom holds that a breath test is less reliable than a blood test. Moreover, unlike a blood test, no samples are preserved with a breath test. The list of potential issues with breath tests is quite lengthy. Again, it's best to consult with an experienced attorney to see if your "breathalyzer" tests may be subject to challenge.

Drunk driving is a serious matter – serious in the damage it may cause to others and serious in terms of the legal repercussions. The best "defense" is not to get behind the wheel after consuming alcohol. But, if your judgment somehow fails you, don't forget that it may be in your best interest to exercise these rights.

by Thomas C. Pavlik, Jr.
Posted in: May, 2007
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