Illinois’s DUI Laws and Conviction Penalties

Like all states, Illinois prohibits driving a vehicle while under the influence (DUI) of drugs or alcohol. This article explains how Illinois law defines DUI, the penalties for a first, second, and third conviction, and some possible options for avoiding certain penalties.

Illinois's DUI Laws

To get a DUI conviction in court, prosecutors must prove the person was driving or in actual physical control of a vehicle:

• while "under the influence" of drugs or alcohol
• with a blood alcohol concentration (BAC) of at least .08%
• with any amount of metabolized controlled substances, or
• a THC (tetrahydrocannabinol) concentration of at least 5ng/ml of blood.

In other words, a DUI conviction can be based on BAC, actual impairment, or a failed drug test.

What It Means to be in "Actual Physical Control" of a Vehicle Under Illinois's DUI Laws

A person cruising down the highway will certainly satisfy the driving requirement of a DUI. But under Illinois's definition of actual physical control, a person can be guilty of a DUI even if the vehicle never moves.

A driver is considered to be in actual physical control of a vehicle if he or she has the immediate ability to put the vehicle into motion. In determining whether a driver was in actual physical control of a vehicle, courts will generally look at factors such as whether the person:

• was in the driver's seat
• had possession of the keys, and
• was physically able to start and engage the vehicle.

However, it's impossible to give bright-line rules on what qualifies and what doesn't qualify as actual physical control—it just depends on what the judge or jury thinks given the circumstances.

How Illinois Law Defines "Under the Influence"

Generally, there are two ways prosecutors can prove a driver was under the influence—with evidence of actual impairment or chemical test results showing a certain concentration of drugs or alcohol in the driver's system.

DUI Charges Based on Impairment

Under Illinois law, any driver whose ability to drive is diminished (due to the consumption of an intoxicating substance) is considered to be under the influence.

The fact that the driver was legally permitted to use the drug (due to a prescription or otherwise) is not a legal defense to a DUI charge.

"Per Se DUI" Charges

A driver is also considered to be under the influence if he or she has a BAC of at least .08%, a THC blood concentration of 5ng/ml or more, or any amount of an illegal controlled substance in his or her system. When a DUI charge is based on the concentration of alcohol or drugs in the driver's system, as opposed to actual impairment, it's often referred to as a "per se DUI."

Unlike with impairment DUI charges, a driver's lawful use of a substance can make a difference with some per se charges. If the driver is medically prescribed the marijuana and holds a Compassionate Use of Medical Cannabis Program registry card, he or she cannot be convicted of DUI simply for having a THC content of 5ng/ml or more. Also, a driver who is lawfully prescribed a medication that qualifies as a controlled substance can't be guilty of a per se DUI.

Penalties for a 1st and 2nd DUI in Illinois

The penalties for a DUI conviction depend primarily on the number of prior DUI convictions.

Jail and Fines, and Community Service for Illinois DUI Convictions

Generally, a first or second DUI conviction is considered a misdemeanor. The chart below outlines the ranges of jail time and fines for a first and second DUI conviction in Illinois.

Aggravating Circumstances

The penalties for a DUI conviction are more severe if the offense involved minor passengers or an especially high BAC level.

Child passengers. If the DUI offender was transporting a passenger under the age of 16, the judge will order—in addition to the standard DUI penalties—a minimum fine of $1,000, 25 days of community service, and up to six months in jail. A second-offense DUI with a child passenger can be charged as an aggravated DUI (see below).

Excessive BAC. If the driver's BAC was .16% or higher, he or she will face—in addition to the standard DUI penalties—a minimum $500 fine and at least 100 hours of community service. A second-offense DUI with a BAC of .16% or more carries an extra two days in jail minimum and at least $1,250 in fines.

Illinois DUI Probation

For most misdemeanor offenses, the court can stay all or part of the jail sentence and place the offender on probation. Conditions of probation might include things like monitored sobriety and substance abuse treatment. Failure to comply with the court's probation requirements can result in jail time.

Substance Abuse Evaluations for Illinois DUI Offenders

Prior to sentencing, all persons convicted of a DUI offense must undergo a substance abuse evaluation. The evaluator will often recommend some form of education, treatment, or therapy, which the judge can incorporate into the sentence.

Victim Impact Panels

The court can also order DUI offenders to attend a victim impact panel as part of a sentence. These panels generally include speakers who have personally suffered a loss due to a drunk driver.

Illinois Aggravated DUI Penalties

A DUI is considered an "aggravated" offense when the:

• offender has at least two prior DUI convictions
• offender was driving a school bus with at least one passenger
• DUI involved a vehicle crash resulting in great bodily harm
• driver's license was at the time of the offense revoked for a prior DUI-related offense
• driver did not have insurance, or
• driver was transporting passengers as a vehicle-for-hire.

An aggravated DUI is a felony.

Jail Time, Fines, and Probation for Aggravated DUI Convictions

An aggravated DUI is generally a class 4 felony and carries one to three years in prison, up to 30 months of probation, and up to $25,000 in fines.

However, the penalties are more severe for fourth and subsequent convictions and DUIs involving fatalities, minor passengers, or a BAC of .16% or more.

License-Related Penalties for Illinois DUI Offenses

Getting caught driving under the influence will typically lead to license-related penalties. These penalties vary depending on the number of prior DUI-related incidents as well as the driver's cooperation with testing.

License-related penalties can result from a DUI arrest and/or conviction.

Illinois's Implied Consent Law

Illinois's "implied consent" law generally requires all drivers who are lawfully arrested for driving under the influence to submit to testing when requested to do so by an officer. Generally, the officer will ask that the driver take a blood, breath, or urine test. Drivers are also required to submit to field sobriety tests (FSTs) for cannabis-related DUI arrests.

Refusing a Chemical Test in Illinois

A driver who is arrested for a DUI but refuses to submit to a lawful test request will be subject to license suspension. When a driver refuses testing, the arresting officer is supposed to immediately seize the driver's license, and the DMV will suspend driving privileges for the following periods:

• 12 months for a first offense, and
• three years for a second or subsequent offense within five years.

Prosecutors can also use the fact that a driver refused testing in court while trying to prove a DUI charge.

Failing a Chemical Test in Illinois

For failed tests (BAC, drug concentration, or FST failures), the DMV will suspend the driver's license for:

• 6 months for a first offense, and
• one year for a second or subsequent offense within five years.

Test results are often used by prosecutors to prove a DUI charge in court.

Getting a DUI Restricted License in Illinois

Drivers suspended for a DUI incident are normally eligible for a restricted license. The type of restricted license depends on the type of DUI violation.

Monitoring Device Driving Permit (MDDP). A driver who has no prior suspensions (within the last five years) is generally immediately eligible for a restricted license. The driver must install an ignition interlock device (IID) on all operated vehicles during the suspension period but is otherwise free to drive. A driver who has a DUI-related license suspension (within the last five years), causes an injury collision, or has two or more prior DUI convictions is not eligible for the MDDP.

Restricted Driving Permit (RDP). Suspended drivers not eligible for the MDDP can apply for the RDP. Applicants must show evidence of hardship, enroll in a treatment program, and must often serve at least one year of the license suspension. The RDP also requires an IID and may include other restrictions.

Mandatory IID. Drivers convicted of a second or subsequent DUI violation are required to have an IID for at least five years.

Illinois's Underage DUI Laws

In Illinois, drivers who are under 21 years of age are prohibited from driving with any amount of alcohol in their system.

While there are no criminal penalties for an underage DUI, the driver's license will be suspended for:

• three months for a first offense, and
• one year for a second offense.

Drivers under the age of 21 are also subject to the state's implied consent law. An underage driver who refuses a lawful test request will face a license suspension of:

• six months for a first offense, and
• two years for a second offense.

An underage driver who has a BAC of .08% or is proven to be "under the influence" (as defined above) can be charged with a standard DUI and face the standard DUI penalties.

Talk with an Illinois DUI Lawyer

If you've been arrested for driving while under the influence in Illinois, you should get in contact with a qualified DUI attorney in your area. The consequences of a DUI conviction can be severe, so having the assistance of an experienced advocate is crucial.