NOTE: The page below was updated to account for passage of the Cannabis Regulation and Tax Act (Public Act 101-0027) on January 1, 2020. After that date, Illinois legalized cannabis for recreational possession and use. Even still, it remains illegal to operate a motor vehicle while impaired by cannabis.
Generally speaking, an arrest for driving under the influence (DUI) is a misdemeanor on the first offense in Illinois. But there are some circumstances where even a first offense can be a felony. Felony DUI offenses are called aggravated DUI.
Misdemeanor offenses have a maximum sentence of less than one year of imprisonment. Felony offenses, on the other hand, have a sentence of one year or more of imprisonment.
625 ILCS 5/11-501
All DUI charges are based on 625 ILCS 5/11-501, the DUI statute. In each case, the prosecution must prove that the defendant violated the law in some manner, such as driving with a blood alcohol content (BAC) of 0.08 percent or above or driving with a trace amount of a controlled substance in the body.
Before 2020, driving with a trace amount of cannabis in the body could result in Illinois charges for DUI. Now that cannabis is recreationally legal, there are new standards in place to measure cannabis intoxication. But ultimately, every person must refrain from driving in Illinois while impaired by cannabis. Otherwise, they could still face DUI charges in Illinois.
If the charge is aggravated DUI, the proof is the same, but there is one additional fact that triggers a more serious sentence. For example, if the defendant is charged with aggravated DUI, a Class 4 felony for not having a valid driver’s license while committing DUI, the State’s case in chief must establish: a) the defendant had a BAC of at least 0.08; and 2) they did not possess a valid driver’s license. The prosecution must prove each fact beyond a reasonable doubt.
The following constitute aggravated DUI under Illinois law:
- This is the defendant’s third offense. A third DUI offense in Illinois results in a Class 2 felony charge of aggravated DUI. A Class 2 felony has a sentence of 3-7 years in the Illinois Department of Corrections but is probationable.
- Driving a school bus with passengers under 18 years of age on board. This is a Class 4 felony, which is punishable by 1-3 years in the Department of Corrections.
- Being involved in an accident resulting in great bodily harm, permanent disability, or disfigurement. An injury to the driver does not count, another person must be injured in the crash. Also, it does not matter who was at fault for the accident. This is a special Class 4 felony with a sentencing range of 1-12 years in prison.
- A second offense of DUI where the defendant has an earlier conviction for some type of alcohol-related reckless homicide offense. This type of aggravated DUI is a Class 4 felony (1-3 years in prison).
- Driving in a school zone (20 mph speed limit on a school day with children present) and being involved in an accident involving bodily harm to another. For this offense, the injury must amount to less than great bodily harm. This is a Class 4 felony offense (1-3 years in prison).
- Causing the death of another person. This is a very serious offense of aggravated DUI, because the presumption is that the court should sentence the defendant to prison rather than probation. The sentencing range is 1-12 years for causing one fatality. If two people or more died in the crash, then the sentencing range is 6-28 years. The prison sentence is not subject to early release (e.g., day-for-day, good-time, or 50%). The defendant must serve at least 85% of the actual sentence in prison, as opposed to the 50% time served for other felony offenses. Note that, in comparison to other aggravated DUI involving vehicle crashes, the defendant must be partially at fault for this offense to hold.
- The defendant’s driver’s license was suspended or revoked for a prior DUI conviction, prior summary suspension, leaving the scene of an accident involving death or personal injury, or reckless homicide. In these cases, the offense is a Class 4 felony offense of aggravated DUI (1-3 years in the Department of Corrections).
- The defendant had an expired or invalid license, or never had a driver’s license. This is a Class 4 felony offense (1-3 years in prison).
- The defendant did not have automobile insurance. This is a Class 4 felony (1-3 years).
- The defendant was involved in an accident that resulted in bodily harm to a passenger under age 16. This offense is a Class 2 felony (3-7 years prison) and has a minimum fine of $2,500 and 25 days in community service.
One very important rule that applies to the above is that the court must sentence the defendant to at least 10 days in jail or 480 hours of community service, unless the court sentences the defendant to prison.
In the experience of the author, if the defendant did not have a driver’s license or proof of insurance, it is actually unlikely that they will be upgraded to a felony offense. This is not true, however, where the defendant never had a license because they were not eligible for one.
