NOTE: This article was updated to changes to Illinois DUI laws under the Cannabis Regulation and Tax Act (Illinois House Bill 1438). After January 1, 2020, in-state residents and visitors are allowed to purchase and use cannabis recreationally. But they must refrain from operating a motor vehicle while impaired by cannabis. Or they can face criminal charges for DUI.
Class 2 felony
A third offense for driving under the influence (DUI) is a very serious case because it is not a misdemeanor offense. Rather, a third DUI in Illinois is a Class 2 felony.
As a reminder, a person commits DUI if they operate a vehicle with a blood-alcohol concentration (BAC) of 0.08 or more. With the Cannabis Regulation and Tax Act, a person also commits DUI if they operate a vehicle with a tetrahydrocannabinol concentration of 5 to 10 nanograms or more. Furthermore, it qualifies as an Illinois DUI to operate a vehicle while impaired by pharmaceuticals, drugs, or controlled substances.
The fact that the first DUI offense resulted in supervision, which the defendant completed, does not matter. The supervision may have resulted in a dismissal of the first DUI charge without a conviction. But it still counts as a prior violation for sentencing purposes. So, if a person had court supervision on the first charge, a conviction on the second charge results in two priors.
A Class 2 felony is punishable by 3-7 years in the Illinois Department of Corrections (prison). However, the offense is probationable, meaning the defendant can be sentenced to probation instead of prison.
Probation for a Class 2 felony offense can last for up to 48 months (4 years). But if the court sentences a defendant on a third DUI offense to probation, a jail sentence is almost sure to follow.
625 ILCS 5/11-501
Per the statute, 625 ILCS 5/11-501, a DUI offense can have the following penalties:
- 10 days in jail, or performance of 480 hours of community service.
- $1,000 DUI technology fee (paid in addition to the fine and court costs).
- If the defendant’s blood alcohol is greater than 0.16, there is a mandatory 90 days in jail and minimum $2,500 fine.
- If the defendant was transporting a child passenger (someone younger than 16 years old), then the mandatory minimum fine is $25,000. Plus, the defendant must perform 25 days of community service in a program benefiting children.
- If there was an accident resulting in great bodily harm, permanent disability or disfigurement, the defendant is eligible for an enhanced sentence of 1-12 years in prison.
Third DUI Offense
That being said, the practice in local courts for a third DUI offense is not consistent with what is provided for in the statute. The reason is, there is almost no escaping jail time on a third DUI in Illinois courts. The judge will not allow it. Some counties will allow probation and no jail time on a second DUI offense, but no county will allow it for a third offense.
If the defendant demands trial, and the jury reaches a guilty verdict, then there is a very high risk of a sentence to the Department of Corrections. Therefore, most three-time DUI offenders take a plea for probation. The probation typically involves jail for up to 180 days, but jail is served at 50% because of good time credits (e.g. day-for-day). Work release is the preferred disposition for this jail time. But first, work release has to be available in the county jail, and second, it is subject to the judge’s approval.
All persons arrested on their third DUI will have to post bond in order to be released from jail. The lowest that bond could be, in the experience of the author, is 10% of $15,000. Bond is typically much higher, around 10% of $30,000.
In some counties – such as Cook County, DuPage County, and Lake County – the bond can be used to pay for the services of an attorney. Sometimes the lawyer will have to bring the case to conclusion in order to receive the bond money. In other counties, such as Will County and McHenry County, the court will not allow the bond to be assigned to the lawyer to pay for legal representation.
Refusal of chemical testing
Most people refuse chemical testing on their third DUI arrest, as well as field sobriety testing. These cases are known as ‘no blow, no fields.’ The absence of chemical testing and field sobriety testing makes it easier to defend the case. But generally, the defendant should be reluctant to test the evidence with a jury. The consequences after a guilty verdict can be very bad.
One important issue raised by the ‘no blow’ aspect is that there will be a statutory summary suspension of the defendant’s driver’s license. A defendant can be a first offender for purposes of the summary suspension even though on the third DUI offense. A first offender is someone who has not had a DUI or summary suspension in the previous 5 years.
As a first offender, the defendant can receive a Monitoring Device Driving Permit (MDDP) by installing a Breath Alcohol Ignition Interlock Device (BAIID). As long as a BAIID is installed in the vehicle, a person charged with their third DUI can drive during the summary suspension period.
The felony offense is not amenable to supervision, so the minimum sentence must be a conviction. The conviction will cause the Secretary of State to revoke the defendant’s driver’s license. But the issue is, the defendant can get a restricted driving permit (e.g. hardship license) during the revocation, but not during the summary suspension.
Therefore, while the summary suspension may seem unimportant during the felony case, it makes a difference once the case is over. If the defendant was not a first offender and the refusal resulted in 3-year suspension, that results in a 3-year period where the defendant cannot get a hardship license.
All of these issues should be reviewed by the attorney and client.
