Statutory Summary Suspension

One of greatest hardships of being charged with DUI (sometimes called DWI) in central Illinois is the Statutory Summary Suspension of the accused’s driver’s license. The near-certainty of loss of driving privileges, unless prompt action is taken on your behalf to challenge that suspension, is one of the most important reasons to make the phone call to an experienced DUI lawyer as soon as possible after your arrest.

A statutory summary suspension is not a criminal charge. Rather, it is a civil penalty that is separate and independent from the criminal offense of DUI. In fact, a person can be found not guilty of DUI and still suffer the loss of their license through a summary suspension because the burdens of proof and issues are different in a trial for DUI and a hearing on the summary suspension.

In Illinois, if, after having been arrested for DUI, a person fails chemical testing or refuses to submit to chemical testing, that person’s license will be subject to a statutory summary suspension which takes effect automatically. Illinois (like all the other states) has an “implied consent” law. This Illinois law means that if a person operates a motor vehicle on any public roadway of this state, that person is deemed to have implicitly consented to the testing of blood, breath, or urine for an alcohol concentration of more than 0.08 or the presence of intoxicating drugs. In addition, recent changes to Illinois law also provide for summary suspensions of licenses for users of medical cannabis who refuse or fail field sobriety tests after an arrest for DUI.

A summary suspension usually becomes effective 46 days after an arrest for DUI. This 46 day effective date is part of the reason why it is so important for a person who has been arrested for DUI to call an experienced DUI attorney in central Illinois as soon as possible after that arrest. In some cases, the start of the 46 days may be delayed if the summary suspension will be based on the results of chemical testing and the test results are not immediately available—for example, if blood and/or urine is sent to the Illinois State Police forensic laboratory for testing. In these cases, the effective date will be 46 days from the date that the arresting officer mails the Notice of Summary Suspension to the client. Typically, these Notices are mailed within 7-14 days of the officer receiving the test results from the lab.

The length of Statutory Summary Suspension an individual receives as the result of a DUI is determined by two factors:

1. Whether the client is a first offender for DUI.
2. Whether the client failed the test or refused the test.

A person is a first offender for summary suspension purposes if he/she has no prior DUIs or statutory summary suspensions in Illinois or any other state within the last 5 years. A first offender who fails the chemical testing will have a summary suspension of 6 months while a first offender who refuses the testing will be suspended for 12 months. If a person does not qualify as a first offender and fails the chemical testing the suspension is 12 months. However, if a person does not qualify as a first offender and refuses the chemical testing the suspension is 36 months.

A person may challenge the suspension with a petition to rescind if it is filed within 90 days of the Notice of Summary Suspension. However, the filing of the petition to rescind does not stay the start of the suspension. The only thing that can stop the suspension from taking effect is an order entered by a judge granting the petition, recorded by the Circuit Clerk on a special form, transmitted to the Secretary of State, and entered by the Secretary of State before the effective date of the suspension.

In addition, the law only requires that the court/prosecution provide a hearing on the petition within 30 days of the filing of that petition. Thus, in order to ensure that a petition to rescind can be heard by a judge before the 46th day, it is essential that the accused retain an experienced DUI lawyer, and that the lawyer file the petition to rescind, within two weeks of the arrest. In addition, if an order is obtained rescinding the suspension, the lawyer should be willing and able to hand-deliver the paperwork to the Secretary of State’s Dirksen Parkway facility in Springfield to avoid the lengthy delay (sometimes up to two weeks) which may occur in the order being processed if sent by the Circuit Clerk through the mail. All of these steps are necessary for a license suspension to rescinded before it begins.

If the suspension does take effect, and the person is a first offender, then he/she will be eligible for a special permit allowing him to drive during the period of suspension. This permit is called a Monitoring Device Driving Permit (MDDP) and requires the installation of a Breath Alcohol Ignition Interlock Device (BAIID). A person who is not a first offender does not qualify for a MDDP.

If the client was arrested for DUI and was involved in an accident that resulted in a Type A injury or death and the client refuses testing, that refusal may result in a summary revocation of driving privileges. Unless the summary revocation is rescinded (using the same process as is used to challenge a summary suspension), then the client may not apply for a license or permit for at least one year, and reinstatement and other driving relief requires an administrative hearing with the Secretary of State. Secretary of State hearings are also complex proceedings, and legal representation, while not required, is strongly recommended.

The statutory bases for a rescission of the statutory summary suspension are:

1. No DUI arrest
2. No reasonable grounds to believe the petitioner was:
   1. Driving or in actual physical control of the vehicle
   2. On a highway (interpreted by caselaw as including any public roads, and in some cases even parking lots)
   3. Under the influence of alcohol and/or drugs
3. Improper warning
4. No refusal
5. No BAC over .08
6. No illegal drug in blood or urine
7. No indication of impairment on SFSTs (medical marijuana cardholders only)
8. No involvement in an accident resulting in a Type A injury or death of another (statutory summary revocations only)

The law regarding statutory summary suspensions is dense. If you or someone you love has been charged with a DUI or been sent a Notice of Statutory Summary Suspension in central Illinois, you need an experienced DUI lawyer on your side.

Please contact our office to schedule your free consultation as soon as possible.