Can You Get a DUI for Being Hungover?

Can You Get a DUI for Being Hungover?You can’t get a DUI for just feeling poorly. Whether you’re not feeling well because you have an illness or whether it’s because you drank too much alcohol, smoked too much cannabis or ingested controlled substances the night before, that alone should not be enough to substantiate a Drunk Driving charge.

According to the laws of Illinois, contained in Chapter 95 1/2 paragraph 11-501, a person is guilty of driving under the influence of alcohol, intoxicating compound(s) or drug(s) only if they were driving (or in actual physical control of a vehicle) and it can be shown that any of the following were true:

  • that the person was under the influence of alcohol
  • that the person was under the influence of any intoxicating compound or some combination of various intoxicating compounds and that this made the defendant not capable of safe driving
  • that driver was under the influence of any drug or any combination of various drugs such that the defendant was not capable of driving safely
  • that the driver was not capable of safe driving due to the combined influence any drug, drugs, intoxicating compound or compounds, or alcohol
  • that the alcohol concentration in the driver’s bodily fluid, breath or blood was 0.08 or more as defined in our Illinois laws located at 625 ILCS 5/11-501.2
  • That any amount of Methamphetamine (as described under the Methamphetamine Control and Community Protection Act) or a controlled substance (cocaine, heroin, Xanax, Oxycodone, etc as described in the Use of Intoxicating Compounds Act) is found in the blood, breath or other bodily fluid of the driver
  • That within 2 hours of being in actual physical control of a vehicle or driving, the person’s concentration of tetrahydrocannabinol (THC)is at least 5 nanograms in the person’s whole blood or at least 10 nanograms or more in any other bodily substance of the person (this doesn’t apply to people who have a valid medical cannabis card unless that person is driving while impaired by cannabis)

What is a Hangover?

Usually, when people refer to a “hangover” they’re talking about feeling poorly after a night (or day) of drinking alcohol. But users of certain other drugs such as cocaine also often experience similar type symptoms, sometimes referred to as a drug “comedown”. The symptoms of a hangover usually start when the person’s alcohol level has reached zero or has dropped significantly and depending on the amount of alcohol or drug used, may result in:

  • A rapid heartbeat
  • Weakness or fatigue
  • Depression, irritability or depression
  • Dry mouth or excessive thirst
  • Inability to concentrate properly
  • Muscle aches or pounding headache
  • Shakes
  • Stomach issues, vomiting or nausea
  • Dizziness or “room spins”
  • Inability to sleep
  • Heightened sensitivity to sound our light
  • Increased blood pressure
  • Fever or sweating

Can I Get Arrested for Just a Hangover?

Say that after an extensive night of drinking, you wait a long time to get into your car – probably waiting many hours to allow the alcohol to slowly dissipate from your body. You’re then pulled over by a police officer for some traffic violation and the officer promptly observes that you have an odor of alcohol emanating from your breath, body or clothing. They see that your eyes are bloodshot and you’re not speaking in a normal tone, probably because you have a splitting headache. They ask you if you’ve been drinking and you might admit that you did have a lot to drink the night before (not a great idea), but that it’s been many hours since then.

It’s at this point that the police will typically ask you to exit your vehicle and submit to some Field Sobriety Tests, such as walking the line or the one-leg stand test. If you’re worn out from the night before and have a hangover though, chances are that you won’t fare very well on these tests and you might even appear to be under the influence of something.

If the police officer is convinced from your appearance and actions that you’re under the influence, they will likely request that you then blow into the portable breath test device, known as a PBT. Although not as technologically sophisticated as the breathalyzer machine found in police stations, the PBT is a “probable cause” tool used to bolster the case against you at court. If you refuse to take the PBT, you’ll probably be arrested because the police officer believes that you’re hiding something.

On the other hand, a person might agree to take the PBT because they’re quite sure that they’ll blow close to zero since so much time has passed. But in those circumstances when the police feel confident that a person is under the influence, yet the driver then blows a zero on a PBT or a breathalyzer, the police will generally assume that they’re under the influence of drugs or some other intoxicating compound. What happens next? If the police are that convinced that the person is high, they’ll likely arrest the driver with the intention of requesting blood or urine testing once back at the police station.

A Hangover is Very Different from Being Under the Influence

No one ever wants to be arrested. But if it happens to you and you truly have no drugs or alcohol in your system, you can at least be secure in the knowledge that no matter how hungover you are, it’s very unlikely that you’ll later be found guilty of a DUI. That’s because the crime only involves being under the influence of alcohol or drugs, period. It’s not a crime to drive sick, hungover or with stomach cramps from the spoiled sushi you bought from that shady looking food-truck.

Time is on Your Side – Sometimes

If you’ve had too much to drink, time is always on your side, because alcohol is always either rising or falling in a person’s system. If you keep drinking, it will rise. But if you stop drinking, it will slowly be eliminated from your system and your alcohol level will continue to drop until it reaches zero. So, if you wait long enough, you’ll be fine to drive.

However, you can never be 100% sure of what your Breath Alcohol Content (BAC) will disclose if you agree to take a breath test in the police station, because many things can affect the results including when you last ate, when you last drank, whether you have dentures, whether you have acid-reflux, and of course your own personal metabolism. Yet if you really, really feel confident that you’ll blow zero or very low on a breath test, you might want to consider doing that. After all, the breathalyzer / intoxilyzer machines were created specifically to help police convict those charged with DUIs. They rely on these machines and swear that they’re accurate. So, if you give your breath and the resulting number is low, it will be very hard for them to argue that the result is not accurate. It can easily make the difference between a protracted legal battle and a quick, easy dismissal in court. Or sometimes, if you blow low enough, the police may decide not to charge you at all in the first place. Just be careful. Taking the breath test can be your best friend or your worst enemy.

But drugs are another matter entirely. They remain longer in your system, sometimes depending on the type of drug, much longer; sometimes days and sometimes weeks. So, you may find yourself being pulled over by the police many days after taking a drug and if your blood or urine test discloses the presence of a drug, it may be a problem, regardless of the concentration in your system. Until recently in Illinois, this was true of cannabis as well in that any amount of cannabis was a potential problem. However, with recent legislation legalizing cannabis in Chicago and across Illinois, it is generally legal to drive with cannabis in your system if the concentration is under a certain nanogram limit.

Experienced DUI Attorneys Available to Discuss Your Case

When a person is pulled over by police (especially if late at night or near bars or places that serve alcohol), the police are often already assuming that the driver may have been drinking. If you’ve had a long night, you may look like you might still be under the influence. Even if you stopped drinking many hours ago, your breath and /or clothing may smell like alcohol, cigarettes or cannabis. Your eyes may still be glassy or bloodshot and you may find it difficult to do field sobriety tests properly, simply because you’re so tired, worn-out or suffering from a hangover.

As has often been said, “appearances are everything”. So, when you “appear” to be under the influence, if can sometimes hard to later convince a judge or jury that you were not what you appeared to be, especially in the absence of a low breath test score. Our experienced DUI legal team can help you navigate the often-difficult court system. We’ve been helping people just like you since 1990. Call us at Mitchell S. Sexner & Associates LLC today for a free appointment and information at (312) 644-0444.

Written by Mitchel S. Sexner Last Updated : February 15, 2022