Illinois law says that if someone drives, the government may take a blood, breath or urine sample to determine alcohol content or the presence of illegal drugs. Failure to submit to to chemical testing for these determinations results in loss of one's driving privileges.
Through the process of obtaining a driver’s license a person in Illinois one gives consent to chemical testing. If a police officer has a reasonable belief that person is driving under the influence of alcohol or drugs, the officer can request the person to submit to testing.
The Theory of Implied Consent
The theory is that during the driver licensing process, Illinois issues the license, and the licensee agrees to follow the rules of the road, including not driving under the influence of alcohol or drugs. That agreement stands for consent to chemical testing.
Statutory Summary Suspension
A statutory summary suspension means that driving privileges will be suspended for a specified period of time and then reinstated. This suspension is imposed if there is a (BAC) blood alcohol concentration of .08 or greater or if there was a refusal to submit to chemical testing or the chemical testing of blood, breath or urine revealed the presence of an illegal substance.
License Penalties and Refusal of Testing
While someone may refuse to be tested, there are driver license consequences for that refusal. The license penalties are as follows:
- There is a 6-month license suspension for a first offender testing greater than .08 BAC (blood alcohol concentration) or having any amount of a designated controlled substance in his blood, breath or urine after a DUI arrest.
- There is a 12-month license suspension for a first offender refusing a blood, breath or urine test after DUI arrest.
- There is a 1 year suspension for a second offender testing greater than .08 or having any amount of a controlled substance in his blood, breath or urine after DUI arrest.
- There is a 3-year suspension as a second offender refusing a blood, breath or urine test after DUI arrest.
The license penalties increase for refusing to submit to chemical testing based upon the theory of implied consent. License suspension penalties lengthen for someone who has had a statutory summary suspension within the prior 5 years. Someone with a prior suspension in that 5 year period is not a first offender. Driving during the suspension is a criminal offense. A guide to restoring driving priviliges for this suspension and other Illinois suspensions can be found at Get Your Illinois Suspended License Back.
During a DUI arrest the officer will take the suspect’s driver’s license. After either testing or refusal, if a driver’s privileges are otherwise valid, the officer will provide a temporary receipt to drive for 45 days. The statutory summary suspension begins on the 46th day after the arrest.
Petition to Rescind Statutory Summary Suspension
There is a right to a judicial hearing on the suspension. This hearing does happen automatically. The suspended driver must request the hearing by filing a petition to rescind the statutory summary suspension. This petition must be filed within 90 days, or the driver loses the right to a hearing.
At the hearing the judge may order the suspension lifted or rescinded. After hearing evidence the judge will decide if any of the following circumstances exist:
- There were no reasonable grounds for a DUI arrest.
- The driver was not properly warned by the officer regarding the consequences of taking or refusing the chemical tests.
- The test results revealed a BAC of less than .08.
- The driver did not refuse to take a chemical test.
- The driver was not properly placed under arrest for a DUI violation as evidenced by the issuance of a Uniform Traffic Citation.
- The arrest was without probable cause
- The driver’s due process rights were violated.
If any one of the above circumstances exist then the judge will enter an order for the Illinois Secretary of State to lift the suspension. Should the judge determine that none of the above apply, he will deny the petition to rescind and confirm the suspension.
The Judicial Driving Permit
Should the judge confirm the suspension, the driver may petition the court for a Judicial Driving Permit. This allows for limited driving privileges for work, education or medical purposes. To qualify for a judicial driving permit, (JDP) a driver must:
- Not have had a Statutory Summary Suspension within the last five years, and
- Completed an acceptable professional alcohol evaluation, and
- Have not been convicted of Reckless Homicide within the previous five years, and
- Have an otherwise valid driver’s license
For those arrested after January 1, 2009 a the option to obtain a JDP no longer exists. It will be replaced by a Monitoring Device Driving Permit (MDDP). For information on an MDDP, please see: Illinois 2009 DUI laws.
License Suspension and DUI Prosecution
Persons involved with statutory summary suspension issues need to remember that the proceedings regarding their driving privileges are separate and apart from the criminal aspects of the DUI prosecution. It is entirely possible to be found not guilty of the DUI and still have a lengthy suspension as a result of the arrest.
