In many ways, a second DUI is the first “mandatory” DUI because, unlike a first infraction, a second DUI is not eligible for court supervision. Therefore, unless an attorney can arrange a plea to reckless driving or secure a not-guilty verdict at trial, a second DUI will likely result in all the consequences of a conviction, including mandatory license revocation.
The best way to approach a second DUI, or almost any other criminal case, is to evaluate any factual and legal defenses and the, based on that assessment and some other factors, determine a course of action.
Penalties for a Second DUI
For DUI penalty purposes, Illinois has no lookback period. So, in many states, if a defendant is arrested for DUI in 2006 and again in 2017, the 2017 DUI would technically be a first offense, since the prior one was more than 10 years old. But in the Prairie State, where the DUI laws are little tougher, the 2017 arrest would be charged as a second DUI.
The penalties under the DUI law for a second infraction are:
- Minimum five days in jail (or 240 community service hours); the maximum jail term is one year,
- Minimum $1,000 assessment plus court costs; the maximum financial penalty is $3,500 plus costs, and
- Minimum drivers’ license revocation of five years.
Prosecutors will upgrade the charges if the defendant had a BAC above .16, there was a child under 16 in the car, the defendant caused an injury collision while intoxicated, or another aggravating factor applies.
Possible Defenses
As discussed above, any prior DUI conviction or reckless driving conviction, no matter how old it is, serves as a prior conviction for sentencing reasons. However, for practical purposes, the older the prior incident is, the more likely prosecutors are to reduce the charges.
There are some other procedural defenses, as well, such as irregularities regarding the police officer’s basis for stopping the defendant.
Substantively, evidence in a second DUI either comes from the field sobriety tests or the chemical test; the chemical test is nearly always a Breathalyzer. Like all circumstantial evidence, the field sobriety tests, such as the one-legged stand, are subject to different interpretations. If even one juror has a reasonable doubt about the prosecutor’s interpretation, the defendant cannot be found guilty.
The Breathalyzer does not measure the blood alcohol level; instead, this gadget measures breath alcohol and then estimates the blood alcohol content based on that measurement. Because of this extra step, the Breathalyzer may be unreliable in borderline cases.
Possible Approaches
Most criminal cases settle out of court, and if any one of the defenses above applies, prosecutors are often willing to reduce the DUI charge to
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