CAN I DRIVE AFTER A DUI?

After a DUI arrest, the Secretary of State automatically sends a notice that your driver’s license will be suspended on the 46th day after your arrest.  The length of that suspension depends on whether you took the field sobriety tests or breathalyzer as well as whether it’s a first or later offense.  The minimum suspension period is six months.

Your attorney may fight your suspension by promptly filing a petition with the court.  The earlier the petition is filed, the better your chances of driving. This does not mean that you win your DUI. Likewise, if you win your DUI, you could still have a suspended license. The Secretary of State and the Court operate on two different levels. A decision in one does not affect the other.

If you lose the petition, you may still qualify for a Breath Alcohol Interlock Ignition Device  (BAIID).  You can drive with a BAIID, but you must breathe into the device to start your car.

If you your DUI ends in a supervision, you may get your license back after any suspension period is over AND you pay your reinstatement fee.  If you are convicted, the Secretary of State will suspend your license for at least one year.  After that suspension, you may apply to regain your license.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

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WHAT IS THE PROCEDURE ON A FIRST TIME DUI IN ILLINOIS?

Once you have been arrested, you are typically brought to the police station, asked to take a breath test and released.  You will be given a court date for your first court appearance. You will also be given a Sworn Report stating that the Secretary of State will suspend your driver’s license, usually beginning 46 days after your arrest.

On the first court date, you are best advised to show up with an experienced DUI attorney. The attorney will enter his or her appearance, which tells the court that he or she is your official representative. The attorney will also ask for copies of the evidence against you.

If you promptly hire an attorney, that attorney may file a petition fighting the suspension of your driver’s license. Even if the attorney cannot win that petition, you may be eligible to drive with a Breath Alcohol Ignition Interlock Device.

After evaluating the evidence against you including any police video from the arrest, the attorney may wish to bring other motions before the court. Perhaps the police lost the video from the arrest. An attorney can ask the court to sanction the state which in some circumstances result in dismissing the charges against you.

After reviewing the evidence, your attorney can also advise you on whether you have a winnable case or whether you should make a plea bargain. An attorney, who is familiar with the courthouse, may be able to negotiate a more favorable plea agreement than you could on your own.

In either case, you will likely be asked to get an alcohol evaluation. In Cook County, only one agency (Cook County Social Services) is authorized to prepare these reports. Your sentencing may depend on how your evaluation turns out. An attorney can help prepare you for your evaluation.

If you decide against a plea bargain, your attorney may take your case to trial before a judge or jury.

If you have questions about this or another DUI, contact Matt Keenan at 1-847-568-0160 or email matt@mattkeenanlaw.com.

 

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WHAT IS BATTERY ON A PUBLIC WAY?

In Illinois, a battery can become an aggravated offense if you knowingly commit battery  on a public way.  See  720 ILCS 5/12-3.05(c).

To convict you, the state must prove that you knowingly, without legal justification caused bodily harm to or made physical contact of an insulting or provoking nature with another person while on a public way. The state need not prove an exact location, and any injury to the victim need not be serious.

Depending where it happened, an attorney may argue that you were not on a public way. Whether the road’s owners were public or private does not matter.  The test is whether the area was accessible to the public. For example, a sidewalk near a privately owned dormitory was a public way, but a dirt lane 95 to 100 feet away from a highway was not.

In cases where the facts are murky, different judges could define a public roadway very differently.  Therefore, an attorney familiar with your courthouse may be better able to present the facts of your case to your particular judge in their most favorable light.

If you have been charged with a DUI or criminal-related offense, contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

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CAN I STAY OUT OF JAIL ON AN AGGRAVATED DUI BEFORE TRIAL?

Even though Illinois abolished cash bail, you may still be held in jail on a DUI before trial if  you are a threat to safety or a flight risk. Even so, the state must show by clear and convincing evidence that  less restrictive conditions than jail would not avoid this threat.

At your pretrial release hearing, your attorney may be able to argue that some combination of conditions would protect public safety and avoid your flight.  Perhaps you could wear a SCRAM device which monitors your drinking, or at least, go on electronic home monitoring.

In deciding your release, a court looks at:  (1) the nature and circumstances of your offense; (2) the weight of the evidence against you; (3) your history and characteristics; (4) the nature and seriousness of the specific, real, and present threat to any person that your would pose; and (5) the risk that you will obstruct or attempt to obstruct the criminal justice process. No one factor is dispositive.

In People v. Luna,  the defendant failed to show that a combination of conditions short of jail would protect the public. But in that case, the defendant had not had a valid driver’s license since 1989 and had five prior DUI convictions.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

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WHAT TO EXPECT ON A SECOND DUI

You swore you’d never drink and drive again, but you did it anyway and now you have a second DUI.

What can happen to you? What can you do?

As you might expect, the penalties are greater for a second  DUI. If convicted, you may be sentenced to a mandatory minimum of five days in jail or 240 hours of community service on top of other criminal and secretary of state sanctions. See 625 ILCS 5/11-501(c)(2).  (A first time DUI is a Class A Misdemeanor punishable by up to a year in jail and a $2,500 fine, but actual jail time is rare.)

If you were still serving your sentence on the first DUI when you got your second, the news is even worse. You  may be resentenced on your first DUI as well as being charged with the violation. If you were driving on a revoked or suspended license, you could also be charged with that offense along with its added jail time or community service.

Is your situation hopeless? Not necessarily. Many of the same rules from a first offense still apply. The State must still prove beyond a reasonable doubt that you were both driving and drinking, and that your driving was impaired.

Even if you were driving, did the police have probable cause to stop you? Were you violating any traffic rules. If not, an experienced attorney may ask the court to suppress the evidence from the stop.

Were you impaired? If you refused  the breathalyzer and/or the field sobriety tests or did well on them, the state might have a tougher time proving this was the case. Furthermore, a breathalyzer slightly over the .08 legal limit may not be enough to prove impairment.

If you have questions about your DUI or other criminal or traffic matters, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

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CAN I BE CHARGED WITH DUI IF I HAVE A MEDICAL CANNABIS CARD?

 

The answer is yes.  But your cannabis card makes a difference as to what the state must prove.

As of January 1, 2020, you may legally consume certain amounts of cannabis if you are over age 21. If you have a medical cannabis card, you may only be prosecuted for a marijuana DUI if you drove impaired. Without the card, you may be prosecuted if you were over the legal limit: a delta-9-THC concentration of either 5 nanograms per milliliter of whole blood or 10 nanograms per milliliter of another bodily substance.  This limit does not apply if you have a valid registry card.

If you have been charged with a DUI or criminal-related offense, contact an experienced attorney immediately.  An attorney can review your case for its best possible defense.  Did the police follow legal procedures in stopping you? Can the state prove all the elements beyond a reasonable doubt, such as you were the driver or you were impaired?  Even if the state’s evidence is airtight, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

Reference: People v. Lee.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

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WHAT CAN HAPPEN WHEN YOU VIOLATE PROBATION IN ILLINOIS?

Your original criminal case ended in a sentence of supervision or probation, albeit with certain conditions.  You thought you were done.  But now the state is trying to violate you.  Maybe you failed a drug test, failed to pay a fine or got in trouble for another offense.

What can happen to you?  What can you do?

After the state petitions the court to violate your probation/supervision, you may be summoned to appear for a hearing, or in some cases, arrested.  At the hearing, the state must prove your violation by a preponderance of the evidence. This is easier for the state than the beyond a reasonable doubt standard required in criminal trials. Your confession of guilt may be all the state needs to meets its burden

If the state wins, the judge can resentence you.  Perhaps your supervision will become a conviction.  Perhaps you will have to serve some time in jail.  Bear in mind that if your violation is based on a new offense, you will still have to defend the new offense.

Whether the evidence is enough for a judge to violate you depends on your particular judge.  An attorney familiar with your court house may be able to present your case to your judge in its most favorable light.  An attorney can highlight weaknesses in the state’s case or attempt to negotiate a more favorable outcome.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email  matt@mattkeenanlaw.com.

Reference:  730 ILCS 5/6-6-4: Violation, modification or revocation of probation.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

 

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CAN YOU BE CONVICTED OF DUI IF YOU ARE BELOW THE LEGAL LIMIT?

Even if your breathalyzer reading is below .08, police can still charge you with DUI. That’s because the .08 limit is only a legal presumption that you were intoxicated.

A reading below .08 can help disprove that presumption of drunk driving.  But if you slurred your speech, had glassy eyes, drove erratically and messed up the field sobriety tests, a judge or jury can still convict you.

Can you still fight the charges? Absolutely. The State has the burden of proving all  elements of the DUI beyond a reasonable doubt. An experienced attorney can reviewyour case for  its best possible defense.  Did police have a reason to stop you?  If not, an attorney can petition to suppress the evidence from your stop.  Can the state prove it was you  driving?  Is there enough evidence that you were impaired?  If not, you could win an acquittal.

Even if your breathalyzer is at or  slightly over .08, you may still be able to fight the charges. Once again, the .08 limit is only a legal presumption. An experienced attorney may be able to show that you were not impaired despite the slightly higher reading.

If you have questions about your situation, feel free to contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com  for advice.

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THE PROS AND CONS OF TAKING THE BREATHALYZER

You were on your way home from a night out on the town when the police pulled you over for a minor traffic violation.  They asked you to perform some field sobriety tests and take a breathalyzer.  Should you do it?  Here are some pros and cons:

PRO:

(1) Taking the Test Cuts Down on the Length of Your Driver’s License Suspension:  After a DUI arrest, the Illinois Secretary of State will automatically suspend your driver’s license for a certain length of time (although you can try to fight this).  For a first-time DUI, the suspension lasts  six months.  If you refuse the tests, your suspension will be twice as long.

(2) If you’ve had very little to drink, the breathalyzer may show you were well below the limit of .08.  Likewise, if you ace the walk-and-turn and one-leg stand tests, you may win your case at trial. However,  if you drove badly, did poorly on the field sobriety  tests and generally looked lost, a low breathalyzer may not help. Further, you may not be the best judge of how drunk you really are, especially if you’ve had mixed drinks.

CON:

(1) If you take the tests, you may be handing the state the evidence it needs to convict you.  The state can charge you with two types of DUI–impaired driving and blowing over the .08 limit.  If you take the breathalzyer, you could guarantee a conviction on at least one of those charges.

(2) A high breathalyzer result may lead to a more severe sentence than if you hadn’t taken the tests or breathalzyer.

(3)  A high breathalzyer could also lead to longer and more expensive court-ordered alcohol treatment.

If you are charged with DUI or a similar offense, contact an experienced attorney immediately.  An attorney can review the evidence in your case for its best possible defense.  Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have a question about this or another traffic or criminal matter, please contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

 

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THE ABCs of DUI Defense

You didn’t see the cop until you went through the stop sign. Or maybe you were in an accident after leaving a party, and the cops were called. Now you are charged with drunk driving.  Can you defend your case?

To be convicted of DUI in Illinois, the State must prove the elements of the offense beyond a reasonable doubt. These elements are: 1) you had too much to drink, and 2) you were driving.

To prove  drinking, the State must show  you were over the legal limit of .08, or that you were so intoxicated that it impaired your driving. Did you take the breathalyzer? Did you perform any field sobriety tests? If the answer is no to both questions, you could still be charged with DUI based on what the police saw, but it may be harder for the state to prove their case.

Suppose you refused the breathalyzer but you took the field sobriety tests? You may still have a defendable case. Most police video their encounters with potential offenders. How do you look on the video? Some defendants manage to ace the one-leg stand and the walk-and-turn tests. If you did well, the state might have a tough time proving you were too impaired to drive.

What if you failed the breathalyzer? If you were only slightly above the .08 legal limit and you looked good on the video, you may still have a defendable case.  Furthermore, in Illinois, a breathalyzer machine is considered accurate if it registers within .009 of the actual result. Therefore, if you blew a .087, there may be some doubt as to whether you or the breathalyzer device were over the legal limit.

What if your breathalyzer result was higher? Can the state then prove you were driving? If you were in an accident and the police arrived after the fact, something still has to place you behind the wheel of the car.

Even if the police saw your driving or had a witness, did they have probable cause to stop you? If you obeyed all traffic laws and  stopped randomly, you may be able to quash your DUI on this basis.

If all else fails (i.e., the police saw you weaving all over your lane, and you failed the breathalyzer and the field sobriety tests), an experienced attorney who is respected in your courthouse may help you negotiate a more favorable plea agreement than you could on your own.

If you have questions about a DUI or other criminal matter, contact Matt Keenan at 847-568-0160 or   matt@mattkeenanlaw.com.

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