Effective July 1, 2011, there will be a new hammer in a never-ending battle to impose more and more penalties on persons suspected of driving while under the influence of alcohol in Illinois.

A new statutory summary suspension revocation of driving privileges (Statute 625 ILCS 5/1-197.6) will become effective. The basis for this revocation of driving privileges shall be a person's refusal to submit to or failure to complete a chemical test or tests following an arrest for the offense of driving while under the influence of alcohol, drugs, intoxicating compounds or any combination thereof involving a motor vehicle accident that caused personal injury or death to another.

This is a new revocation being added to Illinois Law. This is not a suspension of driving privileges. This means that even if you were ultimately found not guilty of the DUI offense your driving privileges will be revoked by the Secretary of State under this statute.

A suspension is for set period of time (625 ILCS 5/1-204). Once a suspension is over, a person’s driving privileges are automatically reinstated upon payment of a reinstatement fee if they are otherwise valid.

A revocation is forever (625 ILCS 5/1-176). The only way a person can obtain reinstatement of driving privileges after a revocation is entered is to apply to the Secretary of State through the administrative hearing process. This process can often be a very lengthy and costly procedure (625 ILCS 5/6-208(b)).

The new statute also amends Section 2-118.1 of the Illinois Vehicle Code (625 ILCS 5/2-118.1) by adding this new revocation.

Currently under Illinois law upon an arrest for driving while under the influence charge a person will be served with a notice of statutory summary suspension by the arresting officer. Within 90 days after the notice of suspension is served a person may make a written request for a judicial hearing through the Circuit Court of venue. The scope of the hearing is somewhat limited :

1. Whether the person was properly placed under arrest for the offense as defined in 625 ILCS 5/11-501;

2. If the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol or drugs or a combination of both; and

3. Whether the person, after being advised by the officer their privileges to operate a motor vehicle would be suspended for refusing to submit and complete the test or tests; or

4. Whether the person after being advised by the officer that their privileges to operate a motor vehicle would be suspended submitted to a test that showed an alcohol concentration of .08 or more or the existence of a controlled substance.

Upon the conclusion of a judicial hearing, the circuit court will either sustain or rescind the summary suspension and notify the Secretary of State of such.

Currently under Illinois law, if a person is otherwise eligible and considered a first offender then the individual would be able to apply for a Monitoring Device Driving Permit (MDDP). If serious personal injury or death occurred as a result of the DUI arrest then the MDDP would not be available to this particular individual (625 ILCS 6-206).

The difference with this new statute is that it creates a new revocation. Further, this statute only requires a Type A injury to trigger the revocation. A Type A injury is defined as any injury that requires immediate medical attention at a hospital or injuries that require a person to be carried from a scene. It also includes severely bleeding wounds and distorted extremities.

In addition, the new statute adds a new penalty to the existing summary suspension law. 625 ILCS 5/6-208.1(a) states that any person whose driving privileges have been revoked under this new law may not make application for a license or permit until the expiration of one year from the effective date of the summary suspension. Any person caught driving a motor vehicle during the time of a summary suspension/revocation will be guilty of a Class A misdemeanor (625 ILCS 5/6-303(c)(3)) and a conviction for subsequent violation would be a Class 4 Felony (625 ILCS 5/6-303(d)). Any motor vehicle used is subject to seizure and forfeiture as provided in Section 36-1 and 36-2 of the Criminal Code.

The only way to avoid a disqualification for a CDL is to win the statutory summary suspension/revocation hearing in the court of venue.

This statute also has also amended Section 11-401 regarding motor vehicle accidents involving death or personal injury (625 ILCS 5/11-401). In the past, a driver of a vehicle involved in a motor vehicle accident resulting in personal injury or death of any person was to immediately stop such vehicle at the scene or as close thereto as possible and return to the scene and remain there. A person who has failed to stop, shall as soon as possible under no case later than one half hour after the accident report it to a police station nearby. If, as a result of the accident the person is hospitalized and incapacitated and unable to report the accident then within one-half hour of release from the hospital the person must report it to the police. A person arrested for violating 11-401 is subject to chemical testing if the testing occurs within twelve hours of the time of the occurrence of the accident that led to his or her arrest.

Under the new statute, if the person then refuses to submit to chemical testing, a statutory summary revocation will go into effect.

Well what about the situation where there is an accident with an injury but there is no arrest for DUI. What happens? The driver is still subject to a possible suspension for refusing to submit to a blood, breath or urine test if you have been given a ticket for a violation of the Illinois Vehicle Code with the exception of equipment violations (625 ILCS 5/11-501.6).

What does all this mean actually? If you have been reading this far, you probably do this kind of work or you are wondering what the big change is. Well this is a big change and it is very scary one to boot.

Currently, if you are arrested for a DUI and there is a personal injury or death, upon a conviction for the DUI arrest, the Secretary of State has the authority to revoke your driving privileges under 625 ILCS 5/6-205 (mandatory revocation of license or permit for reckless homicide or conviction for a violation of 11-501).

The Secretary of State also has the authority for a discretionary revocation under the Illinois Vehicle Code upon a conviction for any violation under the Motor Vehicle Code that results in a death (625 ILCS 5/6-206(4)).

But, the difference here is that under these statutes you need to be convicted. A conviction after a trial or plea based on evidence beyond a reasonable doubt of your guilt in a reckless homicide or DUI offense or the preponderance of evidence on a minor motor vehicle charge.

As of July 1, 2011 this will no longer be the case. People who are found not guilty of the reckless homicide or the DUI offense where there was an injury (Type A) will be punished anyway. The person’s license will be revoked for one year with no opportunity to obtain driving relief for the entire year.

Furthermore, this summary suspension revocation for one year can occur even if there was no arrest for DUI. If you have been charged under 625 ILCS 5/11-401 for leaving the scene of an accident and you refuse to submit to testing a person would incur the same penalty. During that time, a person could not obtain any driving relief from the Secretary of State.

At the end of the one-year summary suspension revocation, your license will not be automatically returned. You will need to go through the Secretary of State hearing process which means a person would have to obtain an alcohol evaluation and complete any counseling may be deemed necessary by the evaluation. A person would then need to appear before the Office of the Secretary of State for an administrative hearing. Historically the Secretary of State does not grant full driving privileges back to any petitioner after a one year revocation for any reason. At best, a petitioner would most likely be granted a restricted driving permit and if a person successfully drove on that permit for a required time the person could then reapply to obtain full reinstatement of driving privileges. All of this has occurred without a conviction for a criminal offense. 92 Ill.Admin.Code §1001.420(i), §1001.430(i)

Obviously the intent of the statute is to encourage drivers arrested for DUI that have been involved in personal injury/death collisions to submit to chemical testing; however, police officers already have the authority to require such drivers to submit to chemical tests. Under 625 ILCS 5/11-501.2(c)(2), if a police officer has probable cause to believe a defendant charged with DUI has caused death or personal injury to another, the person shall submit to chemical testing at the request of a police officer which means that the police officer can take the defendant to the hospital, strap the defendant to a gurney and withdraw blood. The Supreme Court of the United States has already approved such blood draws in Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966)

So why create this new statute when the police already have the authority to require chemical testing in personal injury accidents and the Secretary of State has the authority to suspend driving privileges even without a DUI arrest or to revoke upon receiving notice of a conviction?

The constitutionality of this statutory summary suspension/revocation will most likely be challenged in the courts under the double jeopardy argument. The constitutional protections against double jeopardy contained in both the 5th Amendment to the U.S. Constitution and in Article 1, Section 10 of the Illinois Constitution safeguard a defendant against multiple punishments for the same offense. United States v. Wilson, 420 U.S. 332, 43 L.Ed.2d 332, 95 S.Ct. 1013 (1975).

When the current summary suspension statute was first passed in Illinois many defense lawyers presented motions to dismiss the DUI charge based upon double jeopardy. The claims of double jeopardy were based on several decisions of the US Supreme Court, including the Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 128 L.Ed.2d 767, 114 S.Ct. 1937 (1994), and Austin v. United States, 509 U.S. 602, 125 L.Ed.2d 488, 113 S.Ct. 2801 (1993). Various appellate courts rejected the claim to double jeopardy and the matter finally reached the Illinois Supreme Court in People v. Lavariega, 175 Ill.2d 153, 676 N.E.2d 643, 221 Ill.Dec. 840 (1997). In this case, Defendant was arrested for DUI and following the arrest refused to submit to a chemical test and as such, Defendant’s license was suspended. The defendant filed a petition to rescind, but the circuit court refused to rescind the suspension at a subsequent rescission hearing. The defendant then moved to dismiss the DUI prosecution arguing that it constituted an attempt to subject him to an additional punishment for the same offense in violation of the double jeopardy clause of the Fifth Amendment to the US Constitution and in Article 1, Section 10 of the Illinois Constitution. The trial court denied the double jeopardy motion and the appellate court affirmed.

The Supreme Court upheld the position that a summary suspension proceeding is a civil proceeding and not a criminal proceeding and the summary suspension of a driver’s license is not so punitive as to make it equivalent to a criminal proceeding. A summary suspension is primarily non punitive with the remedial goal of making the road safer by removing drunk drivers so said the Court.

However, this new summary suspension revocation is a separate punishment not connected to the punishment provisions of the Illinois Vehicle Code for a violation of 11-501. (625 ILCS 5/11-501) A person who has been convicted of DUI for the first time is guilty of a Class A misdemeanor. The court is authorized to impose any of the following penalties:

1. A fine of up to $2,500.00 (730 ILCS 5/5-9-1(a)(2);

2. Imprisonment for any term less than one year (730 ILCS 5/5-8-3(a)(1);

3. Probation or conditional discharge, 2 years (730 ILCS 5/5-6-2(b)(3);

However, the Illinois General Assembly enacted legislation authorizing courts to use supervision under 730 ILCS 5/5-6-1(c) as a method of disposing of a crime other than a felony. An order of supervision is not an uncommon disposition for a first offender when aggravating factors such as an accident causing injury are not present. As such, even where there is a Type A injury but the court determines that the injuries are relatively minor despite the person needing immediate medical assistance or having to be transported from the scene, the judge still has the authority to impose an order of supervision.

More importantly though is that an order of supervision will not trigger a revocation of driving privileges as does a conviction for a DUI offense. If there is a very serious personal injury or death involved, the defendant will most likely be charged with a felony and if found guilty, supervision would not be available.

Now we have a circumstance where a defendant is placed on court supervision for a violation of a DUI offense, but then receives a one year revocation for a violation of the new statutory summary suspension revocation statute. As stated above, the defendant would be revoked for one year without any driving privileges available. At the end of year the defendant would need to apply to the Secretary of State to obtain the return of his or her driving privileges as reinstatement is not automatic. This could occur even if you had been found not guilty of a DUI or the reckless homicide case. You will still be punished for one year. This certainly is not fair.

But, with the statutory summary suspension in effect the court has no authority to rescind the suspension. As stated above, the defendant would be revoked for one year and at the end of the year the defendant will need to apply to the Secretary of State to obtain the return of his/her driving privileges. Such an application is not automatic. The defendant would need to produce an alcohol evaluation and most likely complete some type of alcohol counseling. Even if the defendant were to be lucky enough to obtain driving relief after the one year revocation, it is usually the practice of the Secretary of State to start everyone out with a restricted driving permit for one year. If the person successfully drives on the permit for one year without any violations then the person can reapply to the Secretary of State seeking full reinstatement of driving privileges. All of this could occur even if you were granted court supervision on the DUI or found not guilty on the DUI.

Furthermore, this will occur if the injury caused by the DUI collision is relatively minor. If a person demands to be transported from the scene in an ambulance to a hospital, the police officer or paramedic may not find visible signs of injury, but will always transport a person by ambulance if the person so requests. This person could then be taken to the hospital and released after a cursory examination in the emergency room. However, under the statutory summary suspension revocation this is considered a Type A injury and will trigger the one year revocation. Is this fair? ■