One of the most daunting questions on the minds of my DUI clients is “will I go to jail for this?” The answer depends on a number of factors, but primarily on your criminal background.
First determine if you are a first offender. If you have ever been convicted of DUI, you are not a first offender. Note that this differs from “first offender” for purposes of statutory summary suspension (SSS) proceedings, which define first offenders as persons convicted within the past 5 years. Do not be confused: any prior conviction in your lifetime means that you are not a first offender for purposes of the criminal DUI charge.
If you are a First Offender, it is unlikely that you will go to jail.
As a general rule, first offenders rarely receive jail sentences in DUI cases. In most cases, first offense DUIs are Class A misdemeanors, punishable by up to one (1) year in jail and a fine of up to $2,500. However, it is exceedingly rare for misdemeanor first offenders to wind up with a jail sentence. Importantly, the offender is also eligible for court supervision. In other words, a good plea deal can keep first offenders from being convicted in the first place.
That said, there are some important exceptions to be aware of. Illinois’ DUI statute contains several provisions which can modify a first offense to an aggravated DUI, i.e. a felony DUI. Because felonies carry harsher penalties than misdemeanors, aggravated DUIs naturally carry a greater risk of a jail sentence. Sentencing for aggravated DUIs will be explained in more detail below.
Common circumstances which may turn a first offense DUI into an aggravated DUI include:
- Committing the violation in a vehicle that is not covered by a liability insurance policy.
- Committing the violation without a valid driver’s license or permit.
- Violations resulting in accidents which cause the death of another person, great bodily harm or permanent disfigurement to another, or bodily harm to a person under 16 who was being transported by the offender.
If you are not a First Offender, it is more likely that will receive a jail sentence.
Illinois law imposes harsher penalties on DUI offenders with prior DUI convictions.
Absent aggravating circumstances, 2nd offense DUIs are Class A misdemeanors and are unlikely to carry mandatory jail sentences. The offender is often given the choice between a short jail sentence or a large number of hours of community service work.
- Misdemeanor 2nd offenses carry a mandatory minimum sentence of either 5 days in jail or 240 hours of community service in addition to any other penalties.
- The presence of aggravating circumstances can enhance the statutory penalty and may call for a mandatory jail sentence. For example, convictions for misdemeanor 2nd offense DUIs where the defendant’s BAC was 0.16 or higher (i.e. twice the legal limit) carry a mandatory minimum sentence of 2 days in jail and a mandatory fine of $1,250 in addition to any other penalties.
Felony First or Second Offenses (Aggravated DUIs):
- Aggravated first or second offense DUIs are Class 4 felonies. In Illinois, class 4 felonies are punishable by one (1) to three (3) years in prison.
- A sentence of probation or conditional discharge on an aggravated DUI will allow the offender to dodge the lengthy period of imprisonment imposed by the felony sentencing provisions. However, anyone sentenced to probation or conditional discharge for an aggravated DUI must serve a minimum of either 10 days of imprisonment or 480 hours of community service. See 625 ILCS 5/11-501(d)(3).
- A third DUI is a class 2 felony and carries a sentence of not less than three (3) years in prison, and up to seven (7) years.
- If the offender’s BAC was 0.16 or more, the offense carries a mandatory minimum of 90 days imprisonment and a minimum fine of $2,500 in addition to other penalties.
- The offender remains eligible for a sentence of probation or conditional discharge, but must then serve either 10 days in jail or 480 hours community service.
Fourth or Subsequent DUI:
- A fourth or subsequent DUI are offenses for which a sentence of probation or conditional discharge may not be imposed. In other words, conviction will carry the lengthy period of imprisonment found in the felony sentencing provisions.
- A fourth DUI is a class 2 felony for which a sentence of not less than three (3) years in prison will be imposed, and up to seven (7) years.
- A fifth DUI is a class 1 felony for which a sentence of not less than four (4) years in prison will be imposed, and up to fifteen (15) years.
- A sixth or subsequent DUI is a class X felony for which a sentence of not less that six (6) years in prison will be imposed, and up to thirty (30) years.
Felony DUIs and Extended Term Eligibility:
It is important to note that the above felony sentencing ranges do not contemplate extended term eligibility. An offender facing a felony charge for which she is eligible for extended-term sentencing will face a much higher sentencing range. For example, an extended term class 2 felony carries a sentence of seven (7) to fourteen (14) years in prison, as compared to the 3 to 7 year range for standard class 2 felonies.