NOTE: This page contains new material to explain how the Cannabis Regulation and Tax Act impacted DUI laws in Illinois. After this Act became effective on January 1, 2020, the possession and use of cannabis became legal for recreational purposes. Though it remains an Illinois crime to operate a motor vehicle while impaired by cannabis, subject to specific testing standards.
During an arrest for DUI, the officer will make a request for the defendant to submit to a chemical test. If the defendant agrees – and the result of the test is a blood-alcohol concentration (BAC) of 0.08 or above, or the urine or blood test discloses the presence of prescribed medication combined with alcohol, cannabis, or a controlled substance – the defendant’s driver’s license will be suspended. And even if the defendant refuses to submit to any test, their license will be suspended anyway.
Starting in 2020, it became legal to possess and use cannabis for recreational purposes. In addition, Illinois created new standards for operating a vehicle after consuming cannabis, much like limits on BACs. In other words, drivers can face DUI charges for operating a vehicle while impaired by cannabis.
In these situations, the officer will give the defendant a notice of summary suspension. The notice is a written document generally titled, “Notice of Summary Suspension” or “Law Enforcement Sworn Report.” The notice will indicate that the defendant’s driver’s license will be suspended on the 46th day after the officer gave notice.
On the reverse side, there is a section that reads, “IMPORTANT – READ CAREFULLY.” The purpose of this section is to advise the driver how to obtain reinstatement of their driver’s license in court.
The defendant can file a petition for judicial review (also known as a petition to rescind) and receive a hearing on the summary suspension. In the author’s view, the summary suspension hearing is the most important part of a DUI case. The issues that can be raised are the following:
- Whether you were lawfully placed under arrest for DUI;
- Whether the arresting officer had reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence;
- Whether you were properly warned that your license would be suspended;
- Whether you refused the test; and
- Whether the test indicated a BAC above 0.08 or the presence of prescribed drugs with alcohol, or cannabis, or a controlled substance.
The issue of whether you were lawfully placed under arrest for DUI is a question of probable cause. Did the officer have probable cause to arrest you for DUI? Did they have specific, articulable facts which would cause a reasonable person to believe that you had committed a criminal offense? If the answer to these questions is no, then your summary suspension will likely be rescinded.
The next issue is whether the police officer had reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence. Where were you driving? Was it a public highway, a private driveway, or a private parking lot? If it was not a public highway, you likely win. Second, did the police even see you driving? If not, then you can likely win your suspension on the issue of driving or being in actual physical control of a motor vehicle.
The issue of whether you were properly warned is next. Did the officer read to you the written document titled, “Warning to Motorist,” that describes how your license will be suspended depending on the test results or refusal? If not, then you will likely beat your summary suspension.
Finally, there is an issue involving the DUI test. If the defendant testifies that they were not under the influence, then the prosecution must rebut that evidence with the results of the chemical test. If the prosecution cannot lay a proper foundation for admitting the result of the breathalyzer into evidence, then you will likely beat your summary suspension.