DUI – Know Your Rights

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 in states other than Illinois?

First, let’s talk about the basics. Driving Under the Influence is defined as operating a motor vehicle while impaired by alcohol, other drugs, including cannabis (marijuana) prescribed for medical purposes, or intoxicating compounds. In Illinois, drivers are legally considered to be under the influence if they have a blood-alcohol content (BAC) of .08 or more, a tetrahydrocannabinol (cannabis) concentration (THC) of either 5 nanograms or more per milliliter of whole blood or 10 nanograms or more per milliliter of other bodily substance, or have used any other controlled substance or are impaired by medication. The law regarding cannabis currently permits persons to have a specific amount of that drug in their system. In the past cannabis was handled like cocaine, methamphetamine or heroin with any amount of the substance being considered under the influence if operating a motor vehicle. In addition, an individual with a BAC between .05 and .08 may be convicted of DUI if additional evidence shows the driver was impaired. 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”) at the scene. Examples include the heel-to-toe test, the one leg stand, and horizontal gaze nystagmus.  Whether you pass such a test is left to the officer’s subjective judgment with the officer tallying points for things done incorrectly on the individual test. 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 and video of your performance 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 a minimum of 12 months if a first-time offender and maximum of 36 months if not a first-time offender – even if you were sober and would have passed the test. This is called “statutory summary suspension.” A first-time offender is automatically enrolled in the Monitoring Device Driving Permit (MDDP) program so that you can drive during the statutory summary suspension, subject to periodic monitoring through a device located in the car and paying the fees and costs associated with the program.

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 and the “undue hardship” that is being imposed the individual.

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 you and others and serious in terms of the potential 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 your legal right to not incriminate yourself.