Illinois DUI Questions

A statutory summary suspension differs from a driver’s license revocation in terms of its’ nature and timing. A suspension has a definite end point, although the end date may be extended for various reasons, such as having a rejected BAIID explanation while driving on a monitoring permit during the suspension term. However, if no extensions occur during the suspension period, a person’s driving privileges will be restored on the termination date of the suspension if they have paid their reinstatement fee with the Secretary of State. There is no hearing required to end a suspension – it has a natural end.

In contrast, a driver’s license revocation does not have any mandatory end date and will stay in effect until the revoked driver is granted full reinstatement or clearance after a successful Secretary of State hearing. A revoked driver is given a “reinstatement eligibility date,” instead of an end date as in cases of suspension. The “reinstatement eligibility date” is simply the first date that the revoked driver is eligible to apply for their full driving privileges, unless subject to a five-year BAIID permit.

A summary suspension is typically given at or around the time of a DUI arrest in Illinois, whereas a revocation occurs after a person is convicted of the DUI charge. The summary suspension is an administrative penalty given by Illinois Secretary of State relating to a person’s decision on whether to take the test on the date of their DUI arrest. If a person fails chemical testing or refuses to submit to chemical testing, their license will be subject to a statutory summary suspension, absent a successful challenge in court.

If a person wishes to contest the suspension, they have ninety days to file a challenge in court. However, the summary suspension will automatically take effect on the 46th day of receiving notice, despite any pending challenge to the suspension. If a person successfully challenges their summary suspension in court, they still can be found guilty of the ultimate criminal DUI charge and have their license revoked. Likewise, a person may lose the civil suspension hearing but beat the DUI criminal case, preventing the revocation of their Illinois driving privileges.

A DUI revocation is different from a summary suspension in that it is triggered by a conviction on the DUI charge. Unlike the summary suspension at the outset of a DUI case, a revocation happens at the end of the DUI case in court. Once a person has been found guilty of DUI and convicted of the charge, the Secretary of State will revoke their driving privileges upon receiving notice of the disposition. If a person receives court supervision on a DUI charge, the Illinois Secretary of State will not revoke a person’s driving privileges. As such, supervision is often considered a good plea option for eligible first-time DUI offenders if a case cannot be won at trial.

When a person is facing a summary suspension, they may be eligible for a Monitoring Device Driving Permit (MDDP). To be eligible for an MDDP, a person must be a first offender and have an interlock device installed while operating their vehicle. An MDDP allows an eligible first offender to drive during the summary suspension period if those conditions are met for any purpose - 24 hours day, seven days a week. 625 ILCS 5/6-206.1.

There are certain instances where the Secretary will not issue a MDDP despite being a first offender. This includes cases where the person’s license is otherwise invalid, the underlying DUI involved death or great bodily harm, the person has a prior conviction for reckless homicide or aggravated DUI involving a fatality, or the person is under the age of eighteen at the time of their DUI arrest.

A person is considered a “first offender” for MDDP purposes if it has been at least five years since any prior DUI arrest that resulted in supervision or a conviction. 625 ILCS 11-500. A person who is not a first offender does not qualify for an MDDP. If a person is not eligible for an MDDP, a person may still be able to petition the Illinois Secretary of State for a permit at a hearing. If grounds exist, a person may also try to challenge the suspension in court if they are within the ninety-day window to file a challenge.

Upon receiving notice of the summary suspension, the Illinois Secretary of State should send an eligible first offender written notice that they are able to obtain an MDDP upon meeting the requirements for issuance. If a person does not have their current address on file with the Secretary of State, they should contact the Springfield Secretary of State office at 217-782-7065 to ensure the MDDP packet is delivered to the correct residence.

Many of the permits issued by the Secretary of State mandate an individual to have the Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicle as a condition of driving. The BAIID requires a driver to submit to breath alcohol testing at the time of starting their vehicle, while also prompting them to perform rolling retests while operating their vehicle.

The BAIID is designed to monitor a driver’s BAC level while driving as a safeguard against driving under the influence. The machine is equipped with a camera that takes a photo of the driver at the time of testing. The camera helps prevent positive readings from being attributed to the permittee if another person is using their vehicle at the time of the reading. The camera function is not a video camera – it does not tape you while driving, it only takes a photo of you when you are testing.

When a client has a BAIID in their vehicle, our office provides two general guidelines to help minimize the occurrence of false positives on an interlock device:

1. Wait twenty minutes after putting anything in your mouth before submitting to a BAIID test; and
2. Use soap to clean yourself or your car since many cleaning products contain alcohol.

We recognize that there are situations where a person does not have the time to wait twenty minutes to start their vehicle and may accidentally contaminate the machine with an outside substance. However, as a very broad rule of thumb, these two practices will help lessen the probability of false positives on a BAIID device.

We also encourage people to avoid certain substances before using a breathalyzer that may produce a false positive reading. There are different technologies used for testing devices. Therefore, we cannot create an exhaustive list since some devices are not triggered by contaminants that may affect other types of devices. However, some items that may affect the BAIID include the following:

1. Mouthwash – Many types of alcohol-based mouthwash contain a high percentage of alcohol – as high as 26% in some brands. So even though you don’t ingest mouthwash, there could be enough alcohol on your breath to register a false positive in a short time-period after use.
2. Breath Spray – As with mouthwash, many breath freshener sprays contain high amounts of alcohol, which may lead to a positive reading on the device.
3. Fruit drinks and other beverages – There can be some fermentation in fruit drinks, kombucha, and energy drinks that may cause a minimal amount of alcohol to register on your interlock device.
4. Cough Syrup – Some cold and cough syrups contain high amounts of alcohol, which may cause a positive reading on the interlock device. We encourage interlock users to opt for an alcohol-free cough syrup whenever medically appropriate.
5. Hand Sanitizer – Most hand sanitizers contain a large percentage of alcohol in their ingredients. If possible, we encourage interlock users to sanitize with soap and water to avoid breathalyzer contamination during use.
6. Perfumes and Colognes – Some perfumes and colognes have alcohol as an ingredient. If a breath sample is contaminated in the passenger cabin with the spray, it may result in a false positive reading.
7. Chemicals and Cleaners – Some auto and trade products contain alcohol, such as windshield washer fluid and paint thinner. Although poisonous to ingest, the fumes from the product may contaminate the breathalyzer for a brief period if in close contact with the device.

If a BAIID user has a failed interlock test, the Secretary of State may write a letter to request an explanation for the positive reading. The State allows twenty-one days to provide a written explanation relating to the cause of the reading. If the test was contaminated, the BAIID user should provide supporting documentation to demonstrate that the reading was not related to legitimate alcohol use. If surrounding tests were passed, this factor should be highlighted in the response. In cases where the State accepts the response, it is not deemed to be a violation of the BAIID program.

The best solution to avoid testing failures to avoid alcohol use and products containing alcohol when using the BAIID device. The Secretary of State is not obligated to accept any explanation and a person’s credibility may become diminished if they accrue multiple BAIID readings due to alleged contamination. The best rule of thumb is to avoid drinking alcohol altogether, while waiting twenty minutes before the test after ingesting any food item or handling alcohol-based chemical products.

Under the Illinois DUI law, it is unlawful to drive or be in “actual physical control” of any vehicle” while under the influence of drugs or alcohol. 625 ILCS 11-501. A person does not need to drive or intend to drive to be in “actual physical control” of a vehicle. Naperville v. Watson, 175 Ill. 2d 399, 402 (1997).

The term, “actual physical control” has been litigated extensively to determine what conduct falls within its’ parameters. Over time, the courts have developed a list of factors to consider when determining whether a person is in “actual physical control” of a vehicle while intoxicated, including whether the defendant (1) possessed the ignition key; (2) had the physical capability to operate the vehicle; (3) was sitting in the driver's seat; and (4) was alone with the doors locked. People v. Slinkard, 362 Ill. App. 3d 855, 859 (2005).

The courts continue to decide whether a person was in “actual physical control” of a vehicle while intoxicated on a case-by-case basis. Although the above factors serve as guidance, the State does not need to prove all these factors, nor is the court limited to solely considering these factors if additional evidence exists that are relevant to determining “actual physical control.”

Many clients question the rationale for this provision in the law. We do recognize that the “actual physical control” portion of the DUI law disincentives persons from staying in their vehicle, with no intention of driving, when they know they are too intoxicated to safely operate a motor vehicle. We don’t necessarily agree with the real-world effect.

The Illinois supreme court in Watson explained the legislative intent behind penalizing intoxicated persons for being in “actual physical control” of a vehicle under the DUI law. The court noted that the legislative intent was to encourage those who plan to drink to arrange lodging or safe transportation home in advance. They expressed concern about persons making decisions about safely getting home after their judgment is impaired, rather than before going out drinking. Watson, 175 Ill. 2d at 405.

Generally, reinstatement eligibility is determined by the number of convictions a person has had in life for DUI, under 625 ILCS 5/6-208. There are many exceptions and caveats to the broad eligibility categories embodied in this provision and it is best to consult a lawyer to determine individual eligibility for driving privileges.

For persons convicted of their first DUI, the revocation period is typically one year before they are eligible to request driver’s license reinstatement at a hearing. However, the Secretary of State may issue a credit for time spent without driving privileges, such as the period of statutory summary suspension. Further, if a person is not eligible for full reinstatement, they may qualify for a hardship permit if they meet their burden at a hearing.

In the case of a second or third DUI conviction, Illinois residents are required to drive on a continuous five-year BAIID permit before requesting full reinstatement of their driver’s license, regardless of reinstatement eligibility. If a person is an out-of-state resident seeking clearance, they must wait for the statutory term of eligibility before applying to lift the Illinois hold on their license. Absent an exception or prohibition in the law, a second DUI conviction has a statutory revocation term of five years, while a third DUI conviction carries a term of ten years.

When a person has four or more DUI convictions in life, the law varies depending if they live in Illinois or reside in another state. Whether in-state or out-of-state, all applicants in this category must show at least three years of uninterrupted abstinence from alcohol and drugs prior to applying for driving privileges. However, the nature of the driving relief available is different based on residency.

For Illinois residents with four or more DUI convictions, the applicant must wait five years from their most recent revocation or term of imprisonment, whichever is later, before applying for driving privileges (See 625 ILCS 6/6-205). Persons in this category are only eligible for a lifetime BAIID hardship permit if they are granted driving relief. If two or more of the 4+ convictions are drug-based DUIs, they are barred for life from seeking a restricted driving permit for hardship purposes. However, an Illinois resident in this category may apply as an out-of-state resident if they move later in life and otherwise meet the criteria for clearance as a non-resident.

An out-of-state resident with four or more DUI convictions must wait ten years from the date of the most recent revocation (or out-of-state withdrawal) before seeking full clearance through a hearing. If successful at a hearing, the out-of-state resident’s Illinois licensing hold will be lifted and they can apply in another state for driving privileges. However, if they return to Illinois and attempt to obtain a license, the out-of-state applicant will be subject to the lifetime BAIID hardship permit requirements again.

These time frames serve as a summary of statutory benchmarks only. It is impossible to accurately assess eligibility, including whether a person is barred from applying for driving relief, without knowing the facts of their case. This general overview of the statutory categories should not be relied upon for determining personal eligibility. As with all legal matters, we encourage individuals to seek the advice of an attorney with questions relating to eligibility for license reinstatement.