New Illinois law mandates car breath test device for first-offense DUIs
Public Act 095-0400, SB0300, 95th General Assembly
This Act takes effect on January 1, 2009.
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Bill Status of SB0300
A new Illinois law requires first-time drunk driving offenders to
install breath test devices in their vehicles and pass the test every
time they try to start their engines.
If the driver's breath exceeds the alcohol limit, the apparatus ensures
the car won't start.
Gov. Rod Blagojevich signed the legislation on August 24, 2007, making
Illinois the fourth state to mandate the gadget.
The other states that require it are New Mexico, Arizona and Louisiana,
according to the National Conference of State Legislatures.
When the law goes into effect in 2009, it will effect approximately
30,000 offenders in Illinois who have had their licenses suspended on
DUI arrests, according to the secretary of state's office.
The alcohol ignition interlock devices must be rented and cost about
$150 to install. There are also monthly fees.
"We will not tolerate drunk drivers on our streets," Blagojevich said in
a statement. "This law ... will help make sure impaired drivers can't
get back on the road. But if they do, they'll face tough penalties."
If offenders attempt to drive someone else's vehicle to avoid the breath
tests, they could face jail time.
About 3,000 people in Illinois currently have the devices in their
vehicles. Most are second-time drunk driving offenders.
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Deletes everything after the enacting clause. Reinserts the provisions
of the engrossed bill, with various changes. In the State Finance Act,
provides for creation of the Indigent BAIID Fund and the Monitoring
Device Driving Permit Administration Fee Fund (rather than the Alcohol
Monitoring Device Fund). Provides that a first offender who receives a
statutory summary suspension shall be issued a monitoring device driving
permit (rather than a monitoring device driver's license), except under
specified circumstances. Provides that a person issued a monitoring
device driving permit may not drive a commercial vehicle. Establishes
other restrictions. Provides that a person who received a judicial
driving permit before the effective date of the bill may continue to
drive on that permit. Provides that a person who fails to comply with
the requirements of a monitoring device driving permit commits the
offense of driving on a revoked or suspended license. Provides that a
person who holds a monitoring device driving permit convicted of the
offense for driving a vehicle not equipped with an ignition interlock
device, or a person eligible for a monitoring device driving permit
convicted of driving with a drug or alcohol-related summary suspension,
is guilty of a Class 4 felony and subject to 30 days of imprisonment.
Amends the Unified Code of Corrections. Provides that a person who
commits one of these offenses is not eligible for court supervision. 625
ILCS 5/1-144.5 new. Changes the effective date from January 1, 2008 to
January 1, 2009.
House Amendment No. 2 Provides that, after a drug- or alcohol-related
statutory summary suspension has been imposed on a first offender, the
circuit court shall, unless the offender has opted in writing not to
have a monitoring device driving permit issued (rather than if requested
by the offender), order the Secretary of State to issue the offender a
monitoring device driving permit.
Judicial
admonitions of non-citizens in Illinois criminal courts, Guilty
Pleas
Starting January 1, 2004, a plea of guilty in Illinois will
now only be
"
intelligent and informed" when the judge has admonished
the non-citizen
defendant that his plea may have an adverse consequence on his
non-citizen status in the United States (P.A. 93-0373). This
may turn
into a right without a remedy because the new Section 113-8
does not
require the judge to vacate the plea for failure to admonish.
Illinois
Senate Amendment No.1 deleted the requirement that, after
the court
fails to make the advisement to the alien, and the alien shows
that
conviction of the offense may have immigration consequences for
the
defendant, the court shall, on the defendant's motion, vacate
the plea
of guilty.
Clearly, this law is not retroactive. If the defendant is arraigned
before the effective date of this Act, 1/1/2004, a court's failure
to
provide this advisement does not require the vacation of judgment
and
withdrawal of the plea or constitute grounds for invalidating
a prior
conviction; but the court has the discretion to vacate a judgment
and
permit a defendant to withdraw a plea.
In Illinois many criminal judges will apply the collateral consequence
doctrine, find the failure to admonish "harmless error",
and deny
post-conviction relief. The State's Attorney's office will argue
that
this amendment does not supercede common law or otherwise mandate
the
vacating of the plea, and that the court must look to the totality
of
the circumstances surrounding the plea in determining whether
it was
"
knowing and voluntary." That the failure to admonish is
only one
factor, and if the outcome would be the same with the admonishment,
the
judicial error is "harmless"; that the Senate amendment
deleted the
automatic ground for granting relief evinces an intent to preserve
the
common law approach in post-conviction petitions based on allegations
of
"
involuntary plea."
The Strickland "ineffective assistance of counsel" (misleading
or
incorrect advice) basis should be alleged whenever possible to
augment
this new statutory basis to vacate a plea.
The Criminal Code has been amended to state as follows:
* * *
(725
ILCS 5/113-8 new). Advisement concerning status as an alien.
Before the acceptance of a plea of guilty, guilty but mentally
ill, or
nolo contendere to a misdemeanor or felony offense, the court
shall give
the following advisement to defendant in open court:
" If you are not a citizen of the United States, you
are hereby advised
that conviction of the offense for which you have been charged
may have
the consequences of deportation, exclusion from admission to
the United
States, or denial of naturalization under the laws of the United
States."
Summary:: Short Description: CRIM PRO-ALIENS;CONVICTION
Status:
P.A.93-0373 , eff. 1/1/04, Amends the Code of Criminal Procedure
of 1963.
Provides that before the acceptance of a plea of guilty, guilty
but
mentally ill, or nolo contendere to a misdemeanor or felony offense,
the
court shall advise the defendant in open court that if the defendant
is
not a citizen of the United States conviction of the offense
for which
the defendant has been charged may have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization under the laws of the United States. See P v.
Huante, 143
Ill.2d 61, 1991 (don't ask; don't tell by attorney). Also see: People
v. Pequeno No. 2- 01-0747 (March 21, 2003) Kane County; Defendant
failed
to establish, in hearing on post conviction petition, that he
was denied
effective assistance of counsel which rendered his guilty plea
involuntary when his defense attorney responded to his question
about
impact that guilty plea would have on his immigration status,
that he
did not know; and that defendant would have to ask an immigration
attorney. Further, despite box on guilty plea form that defendant
acknowledges that it might affect immigration status, there was
no
constitutional requirement that court advise defendant that guilty
plea
would result in his automatic deportation.
Senate Committee Amendment No. 1 Deletes the requirement that,
before
accepting an alien defendant's plea of guilty, mentally ill,
or nolo
contendere, to a misdemeanor or felony offense, the court shall
allow
the defendant additional time to consider the appropriateness
of the
plea in light of the defendant's advisement by the court that
conviction
of the charged offense may have immigration consequences for
the
defendant; and that, if the defendant is arraigned on or after
the
effective date of the Act, and the court fails to make that advisement
to the alien, and the alien shows that conviction of the offense
the
defendant pleaded guilty to may have the immigration consequences
for
the defendant, the court shall, on the defendant's motion, vacate
the
plea of guilty, guilty but mentally ill, or nolo contendere,
and enter
the plea of not guilty. Deletes the requirement that, in the
absence of
a record of that advisement by the court, the defendant shall
be
presumed not to have received the required advisement. Deletes
the
language providing that, if the defendant is arraigned before
the
effective date of this Act, a court's failure to provide this
advisement
does not require the vacation of judgment and withdrawal of the
plea or
constitute grounds for invalidating a prior conviction; but the
court
has the discretion to vacate a judgment and permit a defendant
to
withdraw a plea; and that at the time of the plea no defendant
shall be
required to disclose his or her legal status to the court.
Several states already require that a trial court advise an
alien
defendant pleading guilty or nolo contendre of possible immigration
consequences of the plea.
States which have enacted such laws include California, Connecticut,
District of Columbia, Florida, Hawaii, Massachusetts, New Mexico,
New
York, North Carolina, Ohio, Oregon, Texas, Washington and Wisconsin.
See, e.g., CAL. PENAL CODE § 1016.5; Conn. Gen. Stat. § 54-1j
(2001);
D.C. CODE ANN. § 16-713; FLORIDA R. C. P. 3.172(c)(8)(viii).
In Re
Amendments to Florida Rules, 536 So. 2d 992 (Fla. 1988); Ga.
Code Ann. §
17-7-93 (1997); HAW. REV. STAT. § 802E-2; MD. RULE 4-242
(2001); MASS.
GEN. L. ch. 278, § 29D; Minn. Rule Crim. Pro. 15.01 (2000);
Mont. Code
Ann. § 46-12-1210 (1997); New Mexico RA, Rule 5-303(E)(5)and
Form 9-406;
N.Y. CRIM. PROC. LAW § 220.50(7); N.C. GEN. STAT. § 15A-1022(7);
OHIO
REV. CODE ANN. § 2943.031; ORE.REV. STAT. § 135.385(2)(d);
R. I. Gen.
Laws § 12-12-22 (2000); TEX. CODE CRIM. PROC. ANN., art.
26.13(a)(4);
WASH. REV. CODE § 10.40.200 (1990); WIS. STAT. § 971.08(1)(c);
Marriott
v. State, 605 So. 2d 985, 987 (Fla. Dist. Ct. App. 1992) (per
curiam)
(en banc).The American Bar Association's Standards for Criminal
Justice
provide that, if a defendant will face deportation as a result
of a
conviction, defense counsel "should fully advise the defendant
of these
consequences." ABA Standards for Criminal Justice, 14-3.2
Comment, 75
(2d ed. 1982).
TOUGHER
CYBERCRIME PENALTIES
On May 8, 2002 a U.S. House Panel approved the
Cyber Security
Enhancement Act of 2001, H.R.3482.
Computer criminals would face increased penalties,
and internet users
would face greater surveillance by access providers. H.R.3482
includes
among exceptions to otherwise criminal conduct emergency disclosures
to
a governmental entity by an electronic communication service and
specified disclosures made in good faith, and increases penalties
for
violations where the offender knowingly causes or attempts to
cause
death or serious bodily injury.
The bill would direct the U.S. Sentencing Commission
to take into
account the perpetrator's intent and other factors, such as whether
sensitive government computers were the target. The bill also
would make
it easier for Internet service providers to report suspicious
activity
on their networks. Current law prohibits service providers from
reporting user activity unless it presents an immediate risk of
death or
injury, and allows users to sue for damages if their privacy is
violated. Smith's bill would loosen those requirements to enable
service
providers to report threats that are not immediate, and would
protect
them from lawsuits when they do so. Providers would face penalties
if
they did not store electronic records, such as customer e-mails,
for at
least 90 days.
Smith removed a provision that would have reimbursed
Internet providers
for compliance costs, saying the Justice Department could not
determine
what those costs would be. A congressional research service might
attempt to determine appropriate reimbursement levels, he said.
The Judiciary Committee also changed the bill to require the Justice
Department to report after one year how many times Internet providers
had reported suspicious activity. Another amendment clarified
that
police officers do not need to be present while a search warrant
is
executed.
The bill next heads to the House floor for a
full vote. (5/8/2002)
Detailed,
up-to-date bill status information on H.R.3482
FORFEITURE
OF VEHICLE/REVOKED OR SUSPENDED LICENSE
Senate Bill 1730 (Parker, R-Northbrook; Coulson,
R-Glenview) authorizes
the seizure and forfeiture of the vehicle of a person convicted
of
driving on a revoked or suspended license if the suspension or
revocation was the result of (1) a DUI conviction, (2) conviction
of
leaving the scene of a personal injury accident, (3) conviction
of
reckless homicide, or (4) statutory summary related to use of
alcohol,
drugs, or intoxicating compounds.
If the spouse of the owner makes a showing of
hardship, and the vehicle
is the family's only source of transportation, the vehicle may
be
forfeited to the spouse. Forfeiture to the spouse is allowed only
once
per vehicle. The Senate and House have sent Bill 1730 to Gov.
Ryan.
Last action on Bill: PASSED BOTH HOUSES
Last action date: APR-30-02
TRUTH-IN-SENTENCING
House Bill 5652
(Durkin, R-Westchester; Roskam, R-Glen Ellyn) allows a defendant
convicted of cannabis trafficking or controlled substance trafficking
to receive only a maximum of 4.5 days of good conduct credit
for each month instead of the day-for-day good-time credit.
NEW DUI, TRAFFIC LAWS STIFFEN
PENALTIES, BY LARRY A. DAVIS
Three new public acts increase the penalty for
driving while
revoked, modify secretary of state formal hearing procedures,
increase minimum mandatory penalties for some DUI offenses, extend
the use of breath alcohol ignition interlock devices (BAIIDs),
and
make other changes. (Illinois
Bar Journal – December 2001, pdf.)
VOLUNTARY
INTOXICATION DEFENSE
Legislation effective
Jan. 1, 2002 makes it more difficult for
defendants to invoke the intoxication defense. Gov. Ryan signed
P.A.
92-466 in August removing language allowing the defense for individuals
who were voluntarily intoxicated when committing a crime. Read
the text
Intoxicated or drugged condition (720
ILCS 5/6-3):
"A person who is in an intoxicated or drugged
condition is criminally
responsible for conduct unless such condition is involuntarily
produced
and deprives him of substantial capacity either to appreciate
the
criminality of his conduct or to conform his conduct to the requirements
of law."
(Source: P.A. 85-670.) Passed in the General
Assembly May 30, 2001.
Approved August 22, 2001. Effective January 01, 2002.
BLOOD
SERUM IN DUI :
House Bill 2293 (Hultgren, R-Wheaton) would allow a serum-blood
alcohol level to be used, without converting it to a whole-blood
result, as evidence in a DUI case where blood has been drawn from
the offender.
SENTENCING/APPRENDI: On
February 23, Governor Ryan signed into law House Bill 1511,
effective immediately, which requires proof beyond
a reasonable doubt of factors in a criminal case that could indicate
imposition of extended prison sentences. The legislation purports
to place the state's enhanced sentencing laws in line with the
decision last June by the U.S. Supreme Court in Apprendi
v. New Jersey, 530 U.S., 120 S.Ct. 2348 (2000). (Other
than the fact of a prior conviction, any fact that increases
the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt)
The bill provides that if a sentence is vacated
on appeal because of the Apprendi opinion, the defendant may be
either re-sentenced to a term within the range otherwise provided,
or granted a new trial if the state files notice of intention
to seek an extended sentence again.
The Illinois Appellate Court, 1st District, held
in November that
Apprendi applies retroactively to timely filed post-conviction
petitions, so several convicted defendants could receive reduced
sentences. People v. Dionna Beachem, No. 1-99-852.
