Felony and Multiple DUI Charges in Illinois

A second DUI and a felony DUI are not necessarily the same thing.

A DUI charge becomes significantly more serious when a person has prior DUI violations or when additional circumstances result in the felony charge of aggravated DUI.

A second DUI in Illinois is generally still a misdemeanor unless an independent aggravating factor makes the offense an aggravated DUI. A third or subsequent DUI is an aggravated DUI and a felony. When determining whether a DUI is a second, third or subsequent offense, prior DUI dispositions can matter even when the prior case resulted in court supervision rather than a conviction.

For someone charged with a second, third, fourth or subsequent DUI, the first step should be determining exactly what the State is alleging, which prior offenses legally count, and what sentencing and driver’s-license consequences actually apply.

When Does a DUI Become a Felony in Illinois?

Illinois refers to felony DUI as aggravated DUI.

Under 625 ILCS 5/11-501(d), a DUI can become aggravated DUI in several different ways. One of the most common is a third or subsequent DUI offense.

But prior DUI offenses are not the only way a DUI becomes a felony.

Depending on the circumstances, aggravated DUI charges can also arise when a DUI involves serious bodily injury or death, certain child passengers, driving while suspended or revoked for specified prior offenses, driving without a valid license or permit, driving without required liability insurance, operating certain vehicles with passengers, and other circumstances specifically identified by Illinois law.

That distinction matters. A person facing a felony DUI charge should know why the State claims the offense is aggravated, because the alleged aggravating factor is part of what the prosecution must establish.

Is a Second DUI a Felony in Illinois?

Generally, no.

A second DUI is ordinarily a Class A misdemeanor, unless a separate aggravating circumstance elevates the charge to aggravated DUI.

Although the offense ordinarily remains a misdemeanor, the consequences are substantially different from a first DUI. A person charged with a second DUI is not eligible to receive court supervision. If convicted, the driver’s license will be revoked. The length of that revocation depends on the person’s prior conviction history and when the prior conviction occurred.

Illinois law also imposes mandatory sentencing requirements for a second DUI. A second DUI conviction carries a mandatory minimum sentence of either:

• five days of imprisonment; or
• 240 hours of community service.

Additional mandatory penalties can apply depending on the circumstances. For example, a second DUI involving a BAC of .16 or greater carries additional mandatory minimum penalties.

A second DUI can also become aggravated DUI if an independent felony-enhancing circumstance applies.

For many people charged with a second DUI, the inability to receive supervision and the possibility of losing driving privileges through a revocation can be every bit as significant as the mandatory criminal penalties.

Third DUI in Illinois

A third DUI offense is an aggravated DUI and a Class 2 felony.

This is an important dividing line under Illinois DUI law. A person who may previously have faced misdemeanor DUI prosecutions can now face felony prosecution and the possibility of a prison sentence.

Prior court supervision for DUI can count when determining whether the present offense is a third DUI. The criminal classification therefore does not necessarily depend on the person having two prior DUI convictions.

Additional mandatory penalties can apply when aggravating circumstances are present.

For example, Illinois law provides additional mandatory penalties for a third DUI when the person’s alcohol concentration was .16 or greater.

The driver’s-license consequences require a separate analysis because Secretary of State revocation periods are based on DUI convictions, rather than simply the number of DUI offenses used to classify the criminal charge.

For example, a person whose record consists of one prior DUI supervision and one prior DUI conviction may be facing a third DUI criminal charge, but a conviction in the new case would generally constitute the person’s second DUI conviction for purposes of the Secretary of State’s conviction-based revocation schedule. If that second conviction falls within the applicable 20-year period, the minimum revocation is generally five years.

By contrast, a person receiving a third DUI conviction faces a minimum 10-year revocation.

The fact that a third DUI is a felony does not eliminate the need to examine the underlying DUI charge. The State must still prove the current DUI offense and the facts necessary to establish the felony classification.

Fourth DUI in Illinois

A fourth DUI offense is an aggravated DUI and is generally classified as a Class 2 felony.

The sentencing consequences become substantially more restrictive at this level. Illinois law provides that a person convicted of a fourth DUI is not eligible for probation or conditional discharge. As charged, that means a conviction requires a sentence of imprisonment rather than probation.

The driver’s-license consequences again depend on the number of DUI convictions on the person’s record. A fourth DUI conviction results in lifetime revocation of driving privileges.

A lifetime revocation does not necessarily mean that a person can never obtain any driving relief. Illinois currently permits a person with four or more DUI convictions to apply for a Restricted Driving Permit after serving the required portion of the revocation and satisfying the applicable requirements. If relief is granted following a lifetime revocation, lifetime BAIID requirements apply.

Fifth DUI in Illinois

A fifth DUI offense is an aggravated DUI and a Class 1 felony.

Illinois law also provides that a person convicted of a fifth DUI is not eligible for probation or conditional discharge.

At this level, both the criminal case and the driver’s-license consequences require careful attention. The sentencing exposure is substantially greater than in a misdemeanor DUI case. If the record also includes four or more DUI convictions, the person faces lifetime revocation of driving privileges.

Sixth or Subsequent DUI in Illinois

A sixth or subsequent DUI offense is an aggravated DUI and a Class X felony.

A Class X felony ordinarily carries a sentencing range of 6 to 30 years in the Illinois Department of Corrections, subject to any other sentencing provisions applicable to the particular case.

The person’s prior DUI history, the circumstances of the current offense, any additional aggravating factors and the evidence establishing the prior offenses can therefore have enormous consequences.

Not Every Aggravated DUI Is a Multiple DUI

It is possible to face aggravated DUI without having two prior DUI offenses.

Illinois law identifies numerous circumstances that can elevate an otherwise misdemeanor DUI to felony aggravated DUI.

Examples include certain DUI offenses involving:

• great bodily harm, permanent disability or disfigurement;
• the death of another person;
• driving a school bus with passengers aboard;
• certain offenses involving a child passenger;
• driving while suspended or revoked for specified DUI-related or serious driving offenses;
• driving without a valid driver’s license or permit;
• driving without required vehicle liability insurance;
• certain school-zone crashes resulting in bodily harm; and
• operating a vehicle for hire while transporting passengers.

The classification and potential penalties vary depending on the particular aggravating circumstance.

For that reason, simply being told that a case is an “aggravated DUI” does not provide enough information to determine the actual sentencing exposure.

The specific subsection charged matters.

Do Out-of-State DUI Offenses Count in Illinois?

Generally, yes.

When determining whether an offense constitutes a second, third or subsequent DUI, Illinois law can include qualifying prior offenses under the law of another state as well as certain similar local-ordinance and military-installation offenses.

This can become particularly important when a person’s driving history includes an older DUI from Wisconsin, Indiana, Michigan or another state.

The prior offense should still be examined to determine what the offense actually was and whether it qualifies as a similar prior violation under Illinois law.

The State Must Establish the Prior DUI Record

In a multiple-DUI prosecution, the defendant’s prior DUI history can determine whether the current offense is a misdemeanor or felony and can affect the potential sentence.

Illinois does not simply disregard a prior DUI because the defendant received court supervision rather than a conviction. A prior DUI supervision can count when determining whether the current prosecution is a second, third or subsequent DUI offense.

A review of the alleged prior record may therefore include questions such as:

• Was the prior disposition actually for DUI or a similar qualifying offense?
• Was the offense prosecuted in Illinois or another jurisdiction?
• Does an out-of-state offense qualify as a similar offense under Illinois law?
• Is the State relying on the correct defendant and driving record?
• What admissible records establish the prior offense?
• Is the State correctly counting the number of prior qualifying DUI violations?

Illinois law specifically addresses proof of prior DUI convictions, including the admissibility of a certified driving abstract as proof of a prior conviction.

A defense review should therefore consider not only the evidence from the current arrest but also the prior record the prosecution intends to use to establish repeat-offender status.

A Felony DUI Still Requires Proof of the Underlying DUI

The existence of prior DUI offenses or another aggravating circumstance does not establish that the person committed the current DUI.

The current case still has to be proven.

Depending on the circumstances, that review may include:

The traffic stop

Did the officer have a lawful basis to stop the vehicle?

Driving or actual physical control

Can the State prove that the defendant drove or was in actual physical control of the vehicle?

This can become particularly important in cases involving parked vehicles, crashes where the officer did not observe the driving, or situations where more than one person could have been driving.

Officer observations

Police reports often rely on observations such as odor of alcohol, bloodshot or glassy eyes, speech, balance, demeanor and admissions.

Those observations should be compared with video and the surrounding circumstances rather than simply accepted from the report.

Field sobriety testing

The conditions under which field sobriety tests were administered can matter, including the instructions given, surface conditions, footwear, weather, physical limitations and whether the officer administered the tests consistently with accepted procedures.

Breath testing

Breath-test cases may require examination of the testing procedure, observation period, machine records, operator compliance and other issues affecting admissibility or reliability.

Blood and urine evidence

Cases involving hospital blood, police-requested blood draws or urine testing can present different evidentiary and scientific issues.

Video evidence

Squad-car, body-camera, booking-room and other video can provide evidence that either supports or contradicts descriptions contained in police reports.

The potential consequences may be much greater in a felony or multiple-DUI prosecution, but the State still has the burden of proving the current DUI.

Criminal DUI and Driver’s-License Consequences Are Separate

The number of DUI offenses used to classify a criminal DUI charge and the number of DUI convictions used by the Secretary of State are not always the same.

That distinction is particularly important when the person’s record includes court supervision.

A prior DUI supervision can count toward determining whether a new criminal charge is a second, third or subsequent DUI, while supervision itself does not constitute a DUI conviction that causes a conviction-based driver’s-license revocation.

The statutory summary suspension arising from the new arrest is also separate from both the criminal prosecution and any revocation resulting from a DUI conviction.

For DUI convictions, the Illinois Secretary of State generally imposes the following minimum revocation periods:

• one year for a first DUI conviction;
• five years for a second DUI conviction committed within a 20-year period;
• 10 years for a third DUI conviction; and
• lifetime revocation for a fourth or subsequent DUI conviction.

This means two defendants both charged criminally with a third DUI can potentially face different driver’s-license consequences based on how their prior DUI cases were disposed of.

The rules governing eventual reinstatement or restricted driving privileges depend on the person’s complete driving record.

Drivers with multiple alcohol- or drug-related incidents generally face a formal Secretary of State hearing when seeking driving relief. Depending on the record, BAIID requirements may also apply before full reinstatement is possible.

Because the criminal case, statutory summary suspension and Secretary of State revocation operate under different rules, all three should be evaluated separately.

What Should Be Reviewed in a Felony or Multiple DUI Case?

Evaluating a felony or repeat-DUI charge requires looking at both the evidence from the current arrest and the history being used to increase the charge or potential penalties.

That review may include:

• the current police reports and charging documents;
• squad-car and body-camera video;
• breath, blood or urine testing;
• the legality of the traffic stop or police encounter;
• proof of driving or actual physical control;
• the defendant’s Illinois driving abstract;
• records of prior DUI cases and their dispositions;
• out-of-state DUI records;
• whether the alleged prior offenses legally qualify;
• the particular aggravated-DUI subsection charged;
• sentencing eligibility and mandatory minimum provisions;
• the statutory summary suspension from the current arrest; and
• the person’s present and future eligibility for driving relief.

A prior DUI disposition can affect the classification of the current criminal charge without necessarily having the same effect on the Secretary of State’s revocation calculation. Understanding exactly what happened in each prior case is therefore an important part of evaluating the current prosecution.