Q. Where the statute says a DUI with a child under 16-years-old in the vehicle is "subject to" six months of imprisonment, is that mandatory or discretionary?

From the ISBA criminal/DUI/traffic law discussion group

Brett Appelman, Naperville. I read 625 ILCS 5/11-501(c)(3) and see that it says: "A person who violates subsection (a) [i.e., drives under the influence] is subject to 6 months of imprisonment, an additional mandatory minimum fine of $1,000, and 25 days of community service in a program benefiting children if the person was transporting a person under the age of 16 at the time of the violation."

Does this mean that the six months in jail is mandatory? Does "is subject to" mean that?

ISBA lawyers respond

Evan Bruno, Urbana. It's bad drafting. Anyone convicted of a Class A misdemeanor DUI is already "subject to" 364 days of jail. This would suggest that the 'six-months-for-a-kid' provision is mandatory, because otherwise the provision would not affect the possible sentencing options.

But other provisions in the same section use different language that clearly indicates a certain jail term is mandatory (e.g. a defendant who violates this section while doing x "shall be sentenced" to no fewer than 10 days...)

I don't think there's a consensus.

Roberto Acevedo, Elgin. I have had judges in Rolling Meadows and Kane County say "no." In Kane the judge drafted a written opinion stating it is not mandatory.

Robert Deters, Round Lake. This has been bandied about on [this discussion group] a few times and the general consensus is that it is not mandatory. I have also received rulings in Lake and McHenry from judges saying it is not.

Kenneth R. Cloyd, Decatur. In Macon County I have successfully argued that the "subject to" language is discretionary based on (c)(2), which uses the language "shall be sentenced to," and the "shall be subject to" language in (4) and (5), which is mandatory. However, the drawback is that they have decided that if they order jail in a case like that it has to be at least 180 days.

Evan Bruno. The one time I had this issue come up, the Champaign County judge considered it not mandatory. Which, if that is the correct interpretation, renders the provision completely meaningless as applied to an offense with a 364-day sentencing range. I'm OK with that, but it makes no sense from a statutory interpretation standpoint. Maybe they intended to lower the sentencing range from 364 days down to 180 days. Someone should argue that and let us know how it goes over.