DUI/ SUMMARY SUSPENSION/JUDICIAL DRIVING PERMIT/TRAFFIC CITATION, ILLINOIS

• PETITION TO RESCIND SUMMARY SUSPENSION (Cook County .PDF)
• PETITION TO RESCIND SUMMARY SUSPENSION (Lake County .PDF)
• Rule 11.1 of the Circuit Court of Cook County:

  The petitions may be filed in Cook County courthouses other
  than the courthouse where the matter is pending

If you are arrested for driving under the influence of alcohol (DUI),
the arresting officer will request that you submit to chemical testing.
Refusal to submit to this testing can result in a six or 24-month
suspension. Submission to testing that reveals a blood alcohol
concentration of 0.08 or more or any amount of a drug, substance, or
compound resulting from the unlawful use or consumption of cannabis or a
controlled substance will result in a three or 12-month suspension.

Statutory Summary Suspension (chart)

A Statutory Summary Suspension is an administrative procedure providing for the automatic driver’s license suspension of a driver arrested for DUI who fails chemical testing (a test showing a BAC of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound) or who refuses to submit to or fails to complete testing. Statutory Summary Suspensions are automatic, effective the 46th day from the notice date of the suspension. A driver may request a judicial hearing to challenge a summary suspension within 90 days after the notice date. The hearing must be conducted within 30 days of the request or on the first court date scheduled to consider the criminal charges. During the hearing the judge listens to the evidence and decides:

1. Whether the person was properly placed under arrest for an offense as defined in 625 ILCS 5/11-501 of the Illinois vehicle Code (Driving Under the Influence of Alcohol/Drugs) or a similar provision of a local ordinance.

2. Whether the arresting officer had reasonable grounds to believe at the time of the arrest that the person was driving or in physical control of the vehicle while under the influence of alcohol and/or other drugs, or a combination thereof.

3. Whether the person was properly warned by the arresting officer as provided in 625 ILCS 5/11-501.1 of the Illinois Vehicle Code.

4. Whether the person refused to submit and/or complete the required chemical tests or tests, pursuant to 625 ILCS 5/11-501.1(d) of the Illinois Vehicle Code, upon the request of the arresting officer.

5. Whether the person submitted to the chemical test and or tests but the sample of his/her blood alcohol concentration did not indicate a blood alcohol concentration of .08 or more.

Judicial Driving Permits (JDP):

Drivers who have had their licenses suspended may be granted limited driving privileges. These temporary driving permits are only issued for employment, education, and medical purposes when no other form of transportation is available.

* Drivers under age 18 are not eligible for a JDP

* First-time DUI offenders may request a JDP from the court to allow limited driving during a Statutory Summary Suspension. (A first-time offender is a driver who has not received a previous summary suspension, been convicted of DUI or assigned court supervision for DUI in this state, or who has not been convicted of DUI in another state within 5 years)

* Before the court can approve a permit, the offender must prove a hardship exists, provide proof of a current professional alcohol and drug evaluation and present a letter of employment to the court.

* The JDP does not become effective until the 31st day of the suspension.

If you are convicted of a DUI, your driver's license and driving privileges will be revoked for a minimum of one year for the first offense, five years for a second offense committed within a 20-year period, and 10 years for a third or subsequent offense. However, if you are under age 21 at the time of the DUI conviction, your driver's license and driving privileges will be revoked for a minimum of two years for your first offense; for five years or until your 21st birthday, whichever is longer, for your second offense; and for 10 years for a third or subsequent offense.

People v. Johnson, No. 90383 (October 18,
2001) Appeal, 2nd Dist. Reversed. (FITZGERALD)

The issue in this appeal is whether a suspension warning that does
not comply with the suspension statute in force warrants rescission
of suspension. Whether trial courts must rescind summary suspensions
if motorists are not properly warned.

In the instant case defendant was not entitled to a rescission of
his statutory summary suspension because inaccuracy in warning to
motorist was not prejudicial. The parties stipulated that the
warning contained inaccurate information regarding non-first
offenders, though the trial court observed that the error did not
"materially affect" defendant because he was a first offender.
The trial court's rescission order contained express findings that
defendant was a first offender, but that the warning which failed to
comply with section 6-208.1 concerned non-first offenders; the
warning to motorist that he was provided advised of two year
suspension for refusal for persons other than first offenders. The
misinformation did not directly affect defendant's potential length
of suspension. Therefore, rescission of his summary suspension was
not warranted.

The court adopted principles set forth in People v. Wegielnik, 152
Ill. 2d 418, 427 (1992).

First, the statutory language requires arresting officer to "warn"
motorists. The word "warn" does not imply "subjective understanding
[of the consequences] on the part of the person so advised. The
statute requires only that "warnings be given . [It] does not
require that a motorist understand the consequences . The
implied-consent statute was enacted as a matter of public policy to
make highways safer. Therefore, the remedial nature of the statute
warranted liberal construction to accomplish its overall goal of
safety.

The threat of summary suspension for refusing to take a
blood-alcohol test motivates drivers to take the test, thereby
allowing the State to obtain objective evidence of intoxication. For
this reason it is in the State's best interest for law enforcement
officials to fully explain the consequences of refusal.

The warnings required by the implied-consent statute are not meant
to enable an "informed choice." In fact, the warnings benefit the
State, not the motorists. Specifically, warnings are an
evidence-gathering tool for the State. The threat of an extended
suspension for motorists who refuse the test motivates individuals
to take the test so that the State may gain objective evidence of
intoxication. This evidence helps the State achieve the overall goal
of the statute-to help prosecute and remove "problem drivers" from
the highways.

1st Dist. PEOPLE v. ULLRICH, No. 1-00-1855, FIFTH DIVISION MARCH 15, 2002 (JUSTICE CAMPBELL) SUMMARY SUSPESNION/Sworn Reports, Confrontation

On February 20, 2000, defendant David Ullrich was arrested and charged
with driving under the influence of alcohol. Ullrich filed his petition
on February 24, 2000, alleging that the police lacked reasonable grounds
for arrest and failed to warn him of the consequences of refusing to
submit to testing.

Ullrich answered ready on March 14, 2000, but the trial court had not
received a legally required confirmation of the suspension from the
Secretary of State. The case then was continued at the request of the
State, keyed to the arresting officer's schedule.

On March 23, 2000, no police witnesses appeared.

The trial court here continued the case, at the State's request, to a
date keyed to the arresting officer's schedule, which may have
unintentionally lulled Ullrich into believing he would be able to
question the officer at the hearing. In this case, it seems that the
State notified the officers and that they intended to appear, but were
required to appear elsewhere.

Nevertheless, this case demonstrates the danger raised where there is no
showing that the motorist was informed of his right to subpoena and the
consequences of failing to exercise it, and knowingly and intelligently
waived it. The procedure in section 2-118.1, allowing the consideration
of the officer's official reports, subject to the motorist's right to
subpoena the officer, comports with due process of law. However, any
waiver of the motorist's right to subpoena the officer must be knowing,
voluntary, and intentional.

As there was no showing of such a waiver here, the trial court erred in
denying the petition based on the officer's official reports, once the
motorist presented a prima facie case for recission.

Section 2-118.1(b) of the Illinois Vehicle Code, which sets forth the
procedure for seeking to rescind a statutory summary suspension of a
driver's license, provides as follows:

"(b) Within 90 days after the notice of statutory summary suspension
served under Section 11-501.1, the person may make a written request for
a judicial hearing in the circuit court of venue. The request to the
circuit court shall state the grounds upon which the person seeks to
have the statutory summary suspension rescinded. Within 30 days after
receipt of the written request or the first appearance date on the
Uniform Traffic Ticket issued pursuant to a violation of Section 11-501,
or a similar provision of a local ordinance, the hearing shall be
conducted by the circuit court having jurisdiction. This judicial
hearing, request, or process shall not stay or delay the statutory
summary suspension. The hearings shall proceed in the court in the same
manner as in other civil proceedings.

The hearing may be conducted upon a review of the law enforcement
officer's own official reports; provided however, that the person may
subpoena the officer. Failure of the officer to answer the subpoena
shall be considered grounds for a continuance if in the court's
discretion the continuance is appropriate.

The scope of the hearing shall be limited to the issues of:
***
2. Whether the officer had reasonable grounds to believe that the person
was driving or in actual physical control of a motor vehicle upon a
highway while under the influence of alcohol, other drug, or combination
of both; and
3. Whether the person, after being advised by the officer that the
privilege to operate a motor vehicle would be suspended if the person
refused to submit to and complete the test or tests, did refuse to
submit to or complete the test or tests to determine the person's
alcohol or drug concentration ***." 625 ILCS 5/2-118.1(b) (West 2000).

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DUI BREATH TEST

People v. Hanna, 332 Ill. App. 3d 527; Vaugh , Nos. 5-01-0912, 5-01-0914
cons. (unpublished order under Supreme Court Rule 23). Opinion filed
October 17, 2003. (CHIEF JUSTICE McMORROW) (.doc file) (pdf)

In 1999 and 2000, four defendants from Williamson County and two from
Johnson County were arrested and charged with driving under the
influence of alcohol. Breath tests which were conducted all showed
alcohol levels above the legal limit. The defendants filed
pretrialmotions seeking to suppress these results, contending that the
measuring devices used had not been subjected to governmental testing by
the State of Illinois as is required by law. The Illinois Vehicle Code
and the administrative regulations issued under it do, indeed, specify
that such testing should be conducted by the State of Illinois to
determine how the devices will perform under conditions of temperature
extremes, vibrations, and power outages.

Expert testimony was given to the effect that the models at issue here
had already passed tests conducted by the National Highway Traffic
Safety Administration for the characteristics in question. However, the
expert also testified that, because these devices are used under the
controlled conditions of police stations, questions as to power outages,
temperature extremes and vibration are not relevant. He testified that
the department of state government that would supposedly conduct the
tests does not even have the equipment to do so.

In this case, the Illinois Supreme Court held that a literal reading of
the provision in question could produce absurd results. The motions to
suppress were held to have been erroneously granted, and the causes were
remanded for further proceedings on the charges.

1st Dist. People v. Larsen No. 1-00-0251 (June 28, 2001) 4th div. (HARTMAN) Reversed and remanded.

Trial court erred when it granted defendants' motion in limine prohibiting the test results from breathalyzer machines into evidence. Contrary to holding of trial court, regulations
promulgated by Dept. of Public Health do not require that machines be certified within three digits of accuracy in order to be certified accurate.
PDF version

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DUI- HGN Test and Frye standard

People v. Basler

Appellate court correctly reversed trial court for denying
defendant's motion for continuance without allowing her to present
evidence. However, court's suggestion that trial court conduct Frye
hearing before allowing police officer to present results of HGN
test is error. The State is no longer required to show that the HGN
test satisfies the Frye standard before it may introduce the results
of an HGN test into evidence; the validity of HGN tests and test
results, however, is not beyond challenge. If a defendant has
evidence showing that HGN tests are scientifically unsound, then he
may interpose the appropriate objection to the HGN test results and
present his supporting evidence to the trial court. If the trial
court is persuaded by the defendant's evidence, then the court has
the right to bar its admission. It is the defendant's obligation to
show that the test results are infirm. It is not the responsibility
of the State to show that the tests and results are scientifically
valid. Absent proof by the defense that the HGN test is unsound, the
State need only show that the officer who gave the test was trained
in the procedure and that the test was properly administered.
Although validity of test is subject to challenge by means of expert
testimony, test is valid until shown otherwise and only foundation
required is officer's familiarity with test. (HARRISON) HEIPLE,
BILANDIC, special concurrence, MCMORROW, FREEMAN, dissent.

No. 87770 (November 16, 2000) 5th Dist. Appellate court affirmed as modified.

-------------------------------

People v. Carter, No. 88224 (December 1, 2000 (DOUBLE JEOPARDY)
Appeal, 4th Dist. Reversed. Trial and appellate court erred by
holding that defendant could be subject to new trial after court
granted judgment of acquittal notwithstanding the verdict for
driving while suspended, and then reconsidered grant of acquittal,
sua sponte, the following day. Once judgment of acquittal has been
declared by the trial court, defendant may not be subject to new
trial in violation of prohibition against double jeopardy. (MILLER)

---

RECKLESS HOMICIDE/ DOUBLE JEOPARDY

People v. Sienkiewicz (December 4, 2003)
Appellate citation: 331 Ill. App. 3d 70., No. 93970
Opinion by KILBRIDE, J.

In July of 2000 in Lake County, defendant Mariusz Sienkiewicz was riding
his motorcycle with a passenger, Anna Jaruga. There was a collision with
a van after defendant left Interstate 94 and was on the exit ramp
leading into Gurnee. The passenger was killed.

Defendant received a ticket for reckless driving, to which he pled
guilty. He was sentenced to six months' probation and fined $250. In
September, he was indicted for reckless homicide. Claiming double
jeopardy, he moved to dismiss, but the circuit court refused. Defendant
appealed to the appellate court, and the appellate court reversed the
circuit court's ruling.

The Illinois Supreme Court agreed with the appellate court, noting that
both charges were based on the same act and that the reckless driving
charge is a lesser-included offense of the reckless homicide charge.
Therefore, the circuit court should have granted the motion to dismiss
based on double jeopardy.

People v. Latto. Where driving under the influence was used to
enhance defendant's reckless homicide convictions, the charge
driving under the influence of alcohol served as a
lesser-included offense of reckless homicide. Therefore, under
double jeopardy principles, he could not be convicted and
sentenced on the lesser-included offense. People v. Beck, 295
Ill. App. 3d 1050, 230 Ill. Dec. 419, 693 N.E. 2d 897 (2 Dist.
1998), appeal denied, 179 Ill. 2d 592, 235 Ill. Dec. 568, 705
N.E. 2d 441 (1998). Defendant's conviction for aggravated DUI
had to be vacated as a lesser-included offense of reckless
homicide also charged as well, since both convictions were based
on the same acts. People v. Latto, 304 Ill. App. 3d 791, 237
Ill. Dec. 649, 710 N.E. 2d 72 (1 Dist. 1999), appeal denied, 186
Ill. 2d 580, 243 Ill. Dec. 565, 723 N.E. 2d 1166 (1999).

RECKLESS HOMICIDE/ DUE PROCESS

People v. Pomykala (January 24, 2003 )
Appellate citation: 326 Ill. App. 3d 390.
Opinion by GARMAN, J.

In 1999, in Joliet, a man who was driving erratically struck an oncoming
vehicle driven by a woman whose granddaughter, a passenger in the
backseat, was killed. That man, Thomas Pomykala, was convicted of
reckless homicide in a jury trial in the circuit court of Will County.
He had failed field sobriety tests and had tested for a breath-alcohol
concentration of 0.21%. He admitted to having been drinking and to
having had problems with the brakes on his station wagon.

The reckless homicide statute contains a provision which states that
recklessness shall be presumed from being under the influence of
alcohol. In this decision, the Illinois Supreme Court agreed with the
appellate court that this provision amounts to a mandatory presumption,
and, as such, is unconstitutional as conflicting with the presumption of
innocence in a criminal case. A nonpattern instruction given at the
trial reflected this statutory provision.

The Illinois Supreme Court held that the invalid provision is severable,
but agreed with the appellate court that a new trial should be held.
The cause was to be remanded.

People v. Pomykala, No. 3-99-0715, 3rd Dist. (October 11, 2001) Will
County (HOLDRIDGE) Reversed and remanded. Reckless homicide statute
and jury instructions thereunder, which compel presumption that
being under the influence of alcohol or other drug or drugs at the
time of alleged violation is reckless act, is mandatory presumption
violative of defendant's due process rights. Therefore, 720 ILCS
5/9-3(b)is unconstitutional; and jury instruction based on it was
improper. Defendant entitled to new trial without offending jury
instruction.

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MANDATORY INSURANCE

People v. O'Brien, No. 90390 (July 26, 2001) Appeal, 4th Dist. Trial court affirmed, Appellate court reversed.

• PDF

HELD: Both on its face and in the context of related provisions
of the Code, the plain language of section 3-707 clearly
indicates a legislative purpose to impose absolute liability.
Trial court's conviction of defendant for failure to produce
proof of insurance when he was operating vehicle belonging to a
friend, that he mistakenly thought was insured, should not have
been reversed by the appellate court.

Mandatory insurance requirement of Section 3-307 of Motor
Vehicle Code is an absolute liability offense, especially when
read in conjunction with the provisions of Section 4-9 of
Criminal Code.  (THOMAS) McMORROW, FREEMAN, special concurrence
---------
The sole witness at defendant's bench trial was Officer Stephen
Mechling of the University of Illinois police department.
Officer Mechling testified that, on June 10, 1999, he stopped
defendant's vehicle because the license plate registration
sticker on that vehicle had expired. Defendant explained that he
had borrowed the car and therefore did not know that the sticker
had expired. Officer Mechling then asked defendant whether the
vehicle was insured, and defendant stated that he did not know.
When defendant was unable to produce proof that the car was
insured, Officer Mechling issued defendant a citation for
operating an uninsured motor vehicle.

Defendant moved for a directed verdict. In that motion,
defendant conceded that, if section 3-707 is an absolute
liability offense, the State had established a prima facie case.
Defendant argued, however, that section 3-707 is not an absolute
liability offense but instead requires proof of a culpable
mental state. According to defendant, because the State failed
to prove that defendant either knew or should have known that
the borrowed vehicle was uninsured, the State failed to prove
defendant guilty of violating section 3-707. The trial court
denied defendant's motion, holding that section 3-707 is an
absolute liability offense. When no additional evidence was
presented, the trial court found defendant guilty and imposed a
fine of $501 plus court costs.

Defendant appealed, and the appellate court reversed his
conviction (316 Ill. App. 3d 219). In doing so, the appellate
court held that neither the plain language of nor the public
policy underlying section 3-707 justifies the imposition of
absolute liability. 316 Ill. App. 3d at 222-24.

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