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Table of Contents

List of Forms by Chapter

Chapter 1 — Illinois DUI Caselaw and Trial Advocacy — Pretrial

Chapter 2 — Illinois DUI Caselaw and Trial Advocacy — Trial

Chapter 3 — Illinois DUI Caselaw and Trial Advocacy — Alternatives

Chapter 4 — Illinois DUI Caselaw and Trial Advocacy — Consequences and Forms

Chapter 5 — Illinois Summary Suspension Caselaw and Trial Advocacy

I. Implied Consent

[5.1] Introduction

[5.2] Independent of DUI Charge

[5.3] Purpose of Legislation

[5.4] Confidentiality of License Suspension Following Restoration

[5.5] Interpretation of Summary Suspension

[5.6] Protection of Constitutional Rights

[5.7] Constitutional Challenges

[5.8] Due Process

[5.9] Equal Protection

[5.10] Separation of Powers

[5.11] Vagueness

[5.12] Illinois Statutory Summary Suspension Law

[5.13] Period of Summary Suspension

[5.14] Right to Judicial Hearing

[5.15] Suspension for Out-of-State Refusal

[5.16] Tests of Unconscious Persons

[5.17] Types of Tests Authorized

[5.18] Law Enforcement Agency To Designate Tests

[5.19] Arresting Officer To Select Type of Test

[5.20] Authority of Officer To Travel to Adjoining State To Obtain Blood Test Results

[5.21] Obligation To Take Multiple Tests

[5.22] Consultation with Attorney

[5.23] No Constitutional Right When Requested To Submit to Chemical Test

[5.24] No Statutory Right When Requested To Submit to Chemical Test

Procedures To Be Followed

[5.25] Oral Warnings Are Required

[5.26] Miranda Warnings Are Not Required

[5.27] License Confiscation with Receipt

[5.28] Sworn Report of Officer

[5.29] Notice of Suspension to Motorist

[5.30] Confirmation of Suspension

[5.31] Notice of Right to Judicial Hearing

[5.32] Effective Date of Suspension

[5.33] Length of Suspension

[5.34] “First Offender” Defined

[5.35] Refusal To Submit to Test

[5.36] Test Failure

[5.37] Reinstatement Following Suspension

II. Judicial Hearing on Petition To Rescind

Request for Hearing on Petition To Rescind

[5.38] Form of Request

[5.39] Time of Filing Petition

[5.40] Place of Filing

[5.41] Notice on Prosecutor

[5.42] Contents of Request

[5.43] Date of Judicial Hearing

[5.44] Right of Discovery

[5.45] Use of Request To Admit

[5.46] Use of Subpoena Duces Tecum

[5.47] Sanctions for Failure To Provide Discovery

Conduct of Hearing

[5.48] In General

[5.49] Proper Party To Prosecute

[5.50] Jurisdiction of the Court

[5.51] No Right to Jury Trial, Counsel, or Court Reporter

[5.52] No Fifth Amendment Right Against Self-Incrimination

[5.53] Judge Should Not Become Advocate

[5.54] Separate Hearing

[5.55] Delay in Conducting Hearing

[5.56] Standard of Proof

[5.57] Burden of Proof

[5.58] Prima Facie Case Required To Shift Burden

[5.59] State’s Motion for Finding for the State

[5.60] State’s Burden of Proof

[5.61] State’s Motion for Continuance

[5.62] Use of Officer’s Reports

[5.63] Right To Subpoena Officer

[5.64] Officer’s Failure To Appear

[5.65] Examination of Officer or Defendant as Adverse Witness

[5.66] Cross-Examination of Officer

Issues at Hearing To Rescind

[5.67] In General

[5.68] Requirement of Arrest

[5.69] Arrest Outside Officer’s Jurisdiction

[5.70] Issuance of Ticket for DUI

[5.71] Proof of Identity of Motorist

[5.72] Reasonable Grounds

[5.73] Reasonable Grounds for Traffic Stop Not Found

[5.74] Reasonable Grounds for Traffic Stop Shown

[5.75] Probable Cause for DUI Arrest

[5.76] Informant’s Tip

[5.77] Use of Preliminary Breath Test

[5.78] Collateral Estoppel

[5.79] Judicial Estoppel

[5.80] Proof of Driving or Actual Physical Control

[5.81] Place of Driving or Actual Physical Control

[5.82] Warnings and Requests

[5.83] Time of Request

[5.84] Ability To Understand Warnings

[5.85] Confusion due to intoxication

[5.86] Confusion due to injury or illness

[5.87] Miranda warnings unnecessary

[5.88] Inability to understand language

[5.89] Misunderstanding of law

[5.90] Wording of request to submit

[5.91] Refusal To Submit to Test

[5.92] Oral Statements of Motorist

[5.93] Malfunction of Breath Machine

[5.94] Physical Inability To Perform Test

[5.95] Disobedience of Officer’s Instructions

[5.96] Attempts To Impose Conditions

[5.97] Change of Mind

[5.98] Advice of Attorney

[5.99] Other Reasons for Refusal

[5.100] Alcohol Concentration of 0.08 or More

[5.101] Establishing a Prima Facie Case of Inaccurate Test Results

[5.102] State’s Foundation Requirement for Breath Test

[5.103] Margin of Error

[5.104] Delay in Testing

[5.105] Use of Officer’s Reports

[5.106] Foundation Requirement for Blood Test

[5.107] State’s Foundation Requirement To Show Disclosure of Cannabis, Controlled Substance, or Intoxicating Compound

[5.108] Sworn Statement of Officer

[5.109] Contents of Officer’s Report

[5.110] Receipt To Drive

[5.111] Swearing of Officer’s Report

[5.112] Amendment of or Swearing to Report at Hearing

Decision of Court

[5.113] In General

[5.114] Retroactivity of Rescission

[5.115] Court May Not Exercise Lenity

[5.116] Award of Fees as Sanction for False or Frivolous Filings

[5.117] Review of Court Decision

[5.118] Standing To Appeal

[5.119] Stay Pending Appeal

III. Monitoring Device Driving Permit

[5.120] In General

[5.121] Monitoring Device Driving Permit Safeguards

[5.122] Non-First Offenders Not Eligible

[5.123] Motorists Without Valid Driving Privileges

[5.124] Motorists Convicted of Reckless Homicide or Aggravated DUI Involving Death

[5.125] Motorists Without a Valid License

[5.126] Persons Under 18

[5.127] Procedure To Be Followed

[5.128] Verify Eligibility

[5.129] Opt Out of Monitoring Device Driving Permit

[5.130] Issuance of Monitoring Device Driving Permit

[5.131] Confidentiality of Monitoring Device Driving Permit

[5.132] Establishment of Monitoring Device Driving Permit Fee; Indigent Offender

[5.133] Establishment of Rules Pertaining to Ignition Interlock Device

[5.134] Cancellation of Monitoring Device Driving Permit

[5.135] Employer-Owned Vehicles

[5.136] Restricted Driving Permit

IV. Implied Consent of Drivers Issued Tickets for Traffic Violations Who Are Involved in Personal Injury or Fatal Vehicle Crashes

[5.137] In General

[5.138] Constitutional Challenge

[5.139] Use of Test Results in Criminal Prosecutions

[5.140] Applicability of 625 ILCS 5/11-501.6

[5.141] License Suspension

[5.142] Summary Suspension Revocation

V. The Illinois Zero-Tolerance Law

[5.143] Overview

[5.144] Constitutional Issues

[5.145] Period of Suspension

[5.146] Warnings

[5.147] Confidentiality of License Suspension

[5.148] Test Results Are Inadmissible in Any Criminal or Civil Proceeding

[5.149] Right to Administrative Hearing To Rescind Suspension

[5.150] Scope of Hearing

[5.151] Burden of Proof

[5.152] Issues

[5.153] Date of Hearing

[5.154] Conduct of Hearing

[5.155] Collateral Estoppel

Procedures To Be Followed

[5.156] Oral Warnings Are Required

[5.157] Sworn Report of Officer

[5.158] Notice of Suspension on Motorist

[5.159] Confirmation of Suspension

[5.160] Notice of Right to Administrative Hearing

[5.161] Use of Officer’s Report

[5.162] Reinstatement Fee

[5.163] Restricted Driving Permit

[5.164] Need To Complete Alcohol/Drug Education Awareness Program

[5.165] Evaluation Required

[5.166] Purpose for Which Restricted Driving Permit May Be Issued

[5.167] Hard Suspension

[5.168] Location of Hearing for Restricted Driving Permit

[5.169] Mandatory Suspension of Driver’s License for Underage Consumption of Alcohol

[5.170] Implied Consent in Personal Injury or Fatal Boating Accidents

[5.171] Compassionate Use of Medical Cannabis Program Act

VI. Appendix

Forms Relating to Statutory Summary Suspension

[5.172] Law Enforcement Reports

[5.173] Petition To Rescind Statutory Summary Suspension

[5.174] Notice of Filing

[5.175] Consent for Release of Information

[5.176] Form Relating to Motorists Under 21 — Request for Zero-Tolerance Alcohol/Drug Education and Awareness Program

Authors

Todd Cohen
Todd Cohen
Todd Cohen is a Managing Partner at Cohen & Donahue, Attorneys at Law, in Palatine and Elgin, where he focuses his practice on criminal and traffic defense. Cohen has been named to the National Trial Lawyers Top 100 for criminal defense and is a board member of the Decalogue Society Board and is a member of the Northwest Bar Association. He also served previously as a White House intern. He earned his B.A. cum laude from Bradley University, where he was the Director of Recruitment for the Interfraternity Council, and his J.D. from the University of Illinois Chicago School of Law, where he was President of the Decalogue Society.
Jeremy S. Harter
Jeremy S. Harter
Jeremy S. Harter is a Managing Partner at Harter & Schottland P.C., in Round Lake Beach, where he focuses his practice on litigation. Harter has been named to the Super Lawyers list, is a member of the Lawyers of Distinction, and is the Secretary for the Executive Board of the Lake County Bar Association. He earned his B.S. from Knox College and his J.D. from the John Marshall Law School.
Brittany Musleh
Brittany Musleh
Brittany Musleh is an Associate Attorney at Cohen & Donahue, Attorneys at Law, in Palatine, where she focuses her practice on criminal defense. Musleh is a member of the Northwest Suburban Bar Association and Arab American Bar Association. She earned her B.S. from Illinois State University and her J.D. from the University of Illinois Chicago School of Law, where she made the dean’s list.

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DUI Caselaw 2025 Edition

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