Statutory Summary Suspension Explained

Ask anyone who’s ever had a DUI to describe what a Statutory Summary Suspension is and they’ll probably tell you that it’s something like this: It’s like when a person falls down a flight of stairs and then when they finally land at the bottom, someone walks up and kicks them in the head. So basically, it’s an extra kick-in-the-pants that comes with a DUI. Most people charged with Driving under the Influence in Chicago or elsewhere in Illinois sometimes find that the Statutory Summary Suspension (SSS) is the part of the case that causes them the most concern and trouble.

Once Upon a Time, Breath Testing Machines Didn’t Exist

Before the invention of the breath testing machine (commonly referred to as a Breathalyzer), all drunk driving charges relied upon the court testimony of the Chicago Police (or other police department officer) in order to convince the Judge that the Defendant was in fact intoxicated at the time of arrest. If the policeman or policewoman was more convincing than the accused at trial, the Judge would find the defendant guilty. But many times, a Judge would indicate that both the accused and the police officer were equally convincing or that the evidence was too close to make a clear decision. In such cases, the Judge would enter a finding of Not Guilty, because in criminal cases (and a DUI is a criminal case) the burden of proof is “proof beyond a reasonable doubt” and as they say, the “tie goes to the runner”. So, it shouldn’t be of great surprise for anyone to learn that police and prosecutors have long sought out some better way to increase their conviction rates for DUIs.

Enter the Breathalyzer

Devices to measure the quantity of alcohol particles suspended in a person’s breath have been around since as early the 1800’s. These machines were slowly improved upon and after the 1950’s became more widely used and at greater frequency by police departments across the country and Illinois. The purpose of using such a machine was to prove to the Judge in a scientific manner that a particular defendant was in fact under the influence, rather than to have to rely upon the police officer to convince a Judge that his or her recollection of the arrest was more accurate than that of the accused. Although the accuracy of breath machines has improved over time, they’re far from perfect. Yet, their accuracy is generally accepted by most courts in Chicago and other cities in Illinois.

What is the “Legal Limit” for Alcohol in Chicago?

When people speak about a “legal limit”, there’s a very common misconception that if you’re over the limit, you’re guilty and if you’re under the limit, you’re not guilty. Presently in Illinois, the magic number is .08, but at other times in the history of our state (and in most states across the country), that number has been higher. So, this number changes from time to time. There has recently even been talk of lowering the number to .06.

But the idea that if you blow over this number means you lose is not actually correct. Nor is the idea that if you blow below the number that you’ll win. The “legal limit” (as people call it) is just a compromise number, meaning that people who blow above it are more likely to be impaired drivers than not. Is everyone who blows over that number drunk? Absolutely not. Everyone’s metabolism is different and depending on how big they are, what they’ve eaten that day, their tolerance for alcohol and a hundred other considerations, they may be barely buzzed. On the other hand, a small person with a different metabolism who hardly ever drinks may be severely impaired with a breath score of only .03.

The way that the law works in Illinois though, makes it very difficult to win a DUI case if the accused has blown .08 or higher as our statutes specifically state that there is a “presumption” of impairment if the driver has blown .08 or higher. That’s like starting out with “one foot in the hole” when you go in front of a judge and he or she is about to decide whether you were intoxicated at the time of arrest. A presumption means that the judge will presume that you were drunk and it will basically be up to you and your attorney to prove otherwise. It’s not the way that criminal or traffic cases typically work (as there is always supposed to be a presumption of innocence), but it is the way things work here for purposes of the breath machine and the Statutory Summary Suspension.

So What is a Statutory Summary Suspension?

Have you ever heard of the “carrot and the stick” approach? It involves someone offering you something good, like a carrot (if you like vegetables) in return for doing something. But if you choose not to take them up on that offer and you refuse to do what’s being asked of you, then you get hit over the head with a stick instead. No one likes getting hit with a stick. The Statutory Summary Suspension in Illinois is sort of like that.

If you’re arrested for a DUI in Chicago or elsewhere in Illinois, the police are going to ask you to take a breath machine test. As previously discussed, the reason that they want you to take the test is that they’re pretty sure (based on their observations of you) that you’re going to blow over .08 and if you do blow over, they’re going to have a pretty tight case against you. This way, they’ll have scientific evidence of your alcohol impairment and be in a much better position to get you found guilty in court.

The Carrot and the Stick

So how do they entice you to take the breathalyzer test when most people already know that they’ll probably blow too high? They offer you a carrot, which is that if you’ll just take the machine: 1) if you blow under .08, you’ll receive no suspension of your license at all, 2) even if you blow over .08, the suspension you receive will only be 6 months (for a first time offender), 3) but if you refuse to blow into the machine, you’ll instead get a 12 month suspension (that’s the stick).

Should I Blow the Breath Machine or Not?

Whether you should take the carrot or accept the stick is probably the number one question asked of DUI lawyers in Chicago as well as a constant topic of discussion from every bar stool in town. The answer is… it depends upon a lot of things. For a person who has previously been found guilty of a DUI, the answer is almost certainly that you would do well to refuse the chemical testing. Although first-time defendants are typically sentenced to supervision, which allows the driver to continue to drive and no revocation of their license to enter, repeat offenders are faced with an entirely different reality. If you’ve had a previous DUI, chances are that you’ll be denied supervision the second time around because the Illinois Compiled States (ILCS) say so. The statutes (our Illinois laws) specifically state that you can only get one supervision for DUI during your lifetime.

Why is this important? Because when a person blows over .08, their chances of beating their DUI are greatly diminished. For a repeat offender, lowered chances to beat the DUI at trial may mean the difference between long-term loss of privileges, possible life-time loss of privileges and/or jail time.

How Else Might my Breathalyzer Score Affect my DUI Case?

If it’s your first DUI, it may not be quite as important to you because chances are high that you’ll still receive supervision and keep your driving privileges in the end run. Still, when a first offender takes the breath test, he or she always runs the risk that the alcohol concentration might register extra high and might then complicate what would otherwise have been a typical DUI supervision plea. What is considered to be extra high? It depends on the judge, but many judges become concerned when the score exceeds .20 and almost every judge will express concern when the number exceeds .30.

Another effect of a high blow is that it will almost certainly increase the ranking that one receives from the alcohol evaluation company (defendants are required prior to sentencing to submit to an alcohol evaluation so that the judge can determine what level of treatment to order). Depending on the breath test result, the evaluator may be required under their rules to rank the defendant to higher and higher levels. What is the importance of this? The higher the level of treatment, the more it costs and the longer it takes.

So I’m Getting a Suspension. Now What?

If you were arrested for a DUI and received a Statutory Summary Suspension (SSS) as well, you’re not alone. Virtually everyone who gets a driving under the influence charge in Chicago or elsewhere also gets a SSS. That’s because almost everyone charged with this crime either blows over .08 or refuses the breath test and either one of these will earn you a suspension. The reason it’s called a Statutory Summary Suspension is because:

  • The law that creates this type of suspension is set forth within the written laws of Illinois, which are called statutes, so that’s why it’s “Statutory”
  • When the suspension happens, it happens summarily (which means immediately), so that’s why it’s “Summary”. This reference to immediate though is referring to the fact that once the police officer informs the Secretary of State that a person qualifies for a SSS, the Secretary of State will immediately set the suspension in motion, but it doesn’t mean that the suspension will happen immediately.

When Does the Suspension Begin?

This information is contained on a white paper that you should have received after being arrested, it says that the suspension will take place of the “46th day” after you were ticketed or arrested. On the reverse side of that paper is a “Receipt to Drive”. This document is what you should carry during this 46 day period and allows you to drive normally during this time period (assuming that your driver’s license isn’t suspended or revoked for some other reason). Why 46 days? It’s just the time period that was decided by our lawmakers as being a reasonable number of days to allow the driver a chance to contest the suspension.

Getting an Automatic Suspension Doesn’t Seem Fair

Under our system of laws in Chicago (and across Illinois as well as the whole country), citizens simply don’t get punished before they are allowed “their day in court”. It’s a matter of basic fairness that is contained within our laws and the Constitution. So, when charged with a crime, you’ll always get a chance to go to court first and the prosecutor will always have “the burden of proof” of proving that you committed a crime. It’s never your burden to prove your innocence. Only IF the prosecutor or State’s Attorney can then meet their burden should a judge or a jury find you guilty; and only when this happens will you be subject to punishment. This is true about DUI cases also as a driving under the influence charge is a criminal case as well (it just happens to be a criminal case that relates to traffic matters).

But a Statutory Summary Suspension is Not a Criminal Case

So, if this is true, how is it possible that a driver will automatically get suspended 46 days after his or her arrest for a DUI, even if this happens before they can ever step foot in court? The reason is as follows: A SSS is not a criminal matter. It’s a civil matter that just happens to be handled in the same room, at the same time, and with the same judge as the criminal DUI case. Civil cases are usually things like lawsuits for money damages for injuries resulting from car accidents or slipping on grapes at the grocery store, but a SSS is in this category as well.

Civil matters have different legal rules. Different than a criminal case, the driver and his/her attorney actually has the “burden of proof” in such matters to prove to the judge that the suspension should be “rescinded” (which means stopped or undone). Generally, if the judge believes both sides equally, the tie will go to the State and the suspension will stand. These rules are very different than those that relate to criminal cases like DUIs.

Why is a SSS Considered Civil? It Sure Feels Like Punishment

To most people, getting their license suspended feels like their rights are being taken away as a punishment before they ever even get to court. There is no doubt that it feels that way. Although once upon a time, people lived near where they worked and a car was more of a convenience than a necessity, these days it’s clearly a necessity for most and it’s very hard (and expensive) to get around just on public transportation and Ubers. But according to long-standing law in the state of Illinois, driving is not a “right”, but instead it’s considered a “privilege”, which the State can suspend, revoke or completely cancel under certain circumstances. So, when a privilege is suspended or revoked by the State, it’s not considered to be a “punishment”.

How Does a Person Contest Their Suspension?

The first and most important thing to know is that there is a time limit for contesting the Statutory Summary Suspension. It’s generally 90 days from the day that you were served the paperwork, which is usually the same day that you were arrested for the DUI. A document referred to as a Petition to Rescind Statutory Summary Suspension needs to be filed with the court clerk and served upon the prosecutor or State’s Attorney in order to preserve your right to contest the suspension. If the document is filed even one day late, you’ll lose your right to fight the suspension.

Once the Petition has been filed with the court, you and your lawyer will be afforded a hearing date. A hearing is like a small trial. During this hearing, your lawyer will try to convince the judge that the police committed an error during your arrest or processing related to one of these areas:

  • That you weren’t properly placed under arrest for a criminal offense that’s contained in the DUI section of our Vehicle Code (Section 625 ILCS 5/11-501) and evidenced by giving you a Uniform Traffic Ticket
  • That the police officer that arrested you didn’t have “reasonable grounds” to believe that you were either driving or “in actual physical control” of a motor vehicle while being under the influence of alcohol or drugs or some combination of these
  • That you weren’t properly warned by the police about what would happen to you if you did or didn’t take the chemical tests requested and as described in Section 625 ILCS 5/11-501(c)
  • That they’re saying that you refused to take the breath test and/or blood test and/or urine test after being requested to do so by the arresting officer and this isn’t true
  • That you did submit to breath, blood and/or urine testing which the State is saying disclosed results in excess of allowable limits, but this isn’t true

If the Judge agrees that the police made a mistake in one of these ways, then the judge will “rescind” the suspension by sending a order to the Secretary of State ordering them to remove the suspension. Even when this happens, you’ll need to wait until the SOS complies with the order before driving.

Getting a BAIID Device During the SSS

But if you absolutely need to drive to keep your job or for any other reason, then it’s always best to apply for the BAIID device for your car as early as possible. Even if your attorney feels that you have a good chance of getting your suspension rescinded, don’t “put all your eggs in one basket”; give yourself this back-up plan.

A BAIID device is a machine that you install in your car and allows you to drive anywhere you want 24 hours a day during the SSS period. All that is required is that you don’t consume alcohol before driving and blowing into the machine. If the machine senses alcohol, the vehicle will not start and may become disabled. The way to get such a machine is to fill out a form requesting a MDDP (which is the permit that allows you to install the BAIID) and follow instructions supplied by the SOS. They’ll usually send you this form in the mail a couple weeks after your arrest, but if you don’t receive it, just ask your lawyer about how to obtain such a form.

In the event that your DUI attorney is able to get your Statutory Summary Suspension rescinded at court, you can then remove the BAIID from your car and begin to drive normally again. But if you wait for the results of the SSS hearing to order the BAIID, you may find that you’ll need to wait a couple weeks to get it installed when you might need it the most. So, it’s usually best to just start the process of getting one early on. Ask your attorney his or her opinion.

Contact an Experienced Chicago DUI Attorney

When charged with a DUI in Chicago or anywhere in Cook, DuPage, McHenry, Will, Kane or Lake Counties, call Mitchell S. Sexner & Associates LLC any time of day. We’ll put you in touch with a knowledgeable member of our legal team. Since 1990, our legal team has successfully represented defendants charged with driving under the influence of alcohol and drug cases. Contact our office 24 hours a day at (800) 996-4824 to arrange a free consultation.