Page 1
In 2008, Illinois enacted
legislation resolving DUI
sentencing inconsistencies.
This article translates the
complex DUI sentencing
provisions into chart form to
help practitioners determine
which penalties their DUI
clients face. It also discusses
continuing litigation created
by the earlier inconsistent law.
Demystifying Illinois
DU
Sentencing
By Larry A. Davis
1
Page 2
Thus, if your DUI
2
client nervously in-
formed you that he had twice been found
guilty of DUI and asked what would
happen if he were convicted a third time,
your search of the Illinois Vehicle Code
3
would have left you with no definitive
answer. It was unclear whether he faced
sentencing under Class 4 felony guide-
lines or stricter Class 2 provisions.
4
This
was the situation facing not only defense
attorneys but prosecutors and judges as
well.
Fortunately, a long awaited clarifica-
tion of DUI sentencing laws arrived on
June 1, 2008, in the form of PA 95-578.
5
The chart accompanying this article (see
pages 356-58) organizes the myriad sen-
tencing provisions, which are based on
the number of offenses committed and
specific enhancing factors, to help you
determine the impact of the law on your
client.
But what about defendants convicted
under the old inconsistent acts, both those
who have been sentenced and whose
cases remain pending? Have they been,
or will they be, properly sentenced? This
article reviews the statues and cases and
describes the sentencing rules that would
apply if courts apply the stricter or, alter-
nately, the more lenient approach.
What's the correct penalty under
the previous statutes for a third
or subsequent DUI offense?
As is illustrated by the client query at
the top of the article, probably the big-
gest question under the earlier incon-
sistent acts was which sentencing pro-
visions applied to third or subsequent
DUI offenders. Before the passage of
those acts, a person convicted of a third
or subsequent DUI violation was almost
always guilty of a Class 4 felony. Unless
there were specified enhancing factors,
the number of offenses beyond three was
irrelevant; the offense was a Class 4 pro-
bationable offense.
6
But the enactment of enhanced DUI
sentencing provisions contained in the
94th General Assembly's passage of PA
94-114 and PA 94-116, and the subse-
quent passage of three additional pub-
lic acts amending the same
DUI statute, made it hard
to determine whether these
third or subsequent offend-
ers were guilty of a Class X,
Class 1, Class 2, or Class 4
offense.
Analyzing the issues re-
quires reviewing the acts
and their dates of passage.
PA 94-114 passed on May
11, 2005, provided that a
sixth or subsequent offense
was a Class X felony;
7
PA
94-116 passed on May 16, 2005, pro-
vided that a third offense was a Class 2
probationable felony,
8
a fourth offense
was a Class 2 non-probationable felony,
9
and a fifth or subsequent offense was a
Class 1 non-probationable felony.
10
If that weren't enough, the follow-
ing three additional public acts amend-
ing the DUI statute were passed by the
94th General Assembly after the en-
hanced provisions of PA 94-114 and 94-
116 were passed.
First, PA 94-329 passed on May 18,
2005, provided that a person who com-
mitted a DUI offense and did not have
a valid driver's license or liability insur-
ance was guilty of a felony.
11
Second, PA
94-609 passed on May 20, 2005, pro-
vided that a person could not get proba-
tion where the DUI was the proximate
cause of death unless the court found ex-
traordinary circumstances.
12
Third, PA
94-963 passed on April 25, 2006, estab-
lished a DUI police officer education and
training fund.
13
Neither PA 94-329 nor PA 94-609
contained the enhanced sentencing pro-
visions contained in the earlier-passed
PA 94-114 and PA 94-116. Instead, the
newer acts continued to generally pro-
vide that a third or subsequent DUI con-
stituted a Class 4 felony.
14
The drafters of PA 94-963, apparently
not certain which of the other seven ex-
isting public acts controlled (including
those passed by earlier General Assem-
blies and not repealed), simply included
its amendments in all seven acts and oth-
erwise republished them in full.
15
Statute on Statutes. Section 5 ILCS
70/6 of the Statute on Statutes provides
guidance where there exist conflicts be-
tween different public acts:
Two or more Acts which relate to same
subject matter and which are enacted by
the same General Assembly shall be con-
strued together in such manner as to give
full effect to each Act except in case of an
Larry A. Davis is a principal of Larry
A. Davis, Ltd in Des Plains, where he
concentrates in DUI, criminal defense,
and administrative hearings before the
Secretary of State. He is a member and
former chair of the ISBA Traffic Laws
Courts Section Council. He gratefully
acknowleges the assistance of Brandon
K. Davis, a recent graduate of Chicago-
Kent College of Law.
B
eginning with the passage of several public acts in the spring
of 2005 and until June 1, 2008, lawyers advising clients
with multiple DUI convictions were faced with a nearly
impossible challenge. They had to sort through not one
but six different and inconsistent versions of the DUI statute, drawn
from eight different public acts.
1
__________
1. See Public Acts 93-1093, 94-110, 94-113, 94-
114, 94-116, 94-329, 94-609 and 94-963. It is unclear
how this problem arose and was allowed to continue
over several years. Typically, major inconsistencies in
proposed bills are detected by the Illinois Legislative
Reference Bureau, which is charged with reviewing
legislative proposals and putting them into bill form
prior to filing. Any remaining errors or inconsistencies
are usually resolved as they move through the legislative
process or, in the end, by the governor's staff before
signing. Here, the system failed.
2. 625 ILCS 5/11-501.
3. 625 ILCS 5/1-101 et seq.
4. Class 4 offenses carry a potential 1 to 3 years in
the penitentiary pursuant to 730 ILCS 5/5-8-1(a)(7);
Class 2 offenses carry a potential 3 to 7 years in the
penitentiary pursuant to 730 ILCS 5/5-8-1(a)(5).
5. PA 95-578 (eff 6/1/08 except certain parts
addressing statutory suspensions and monitored device
driving permits eff 1/1/09).
6. See 625 ILCS 5/11-501(d)(2)(2005).
7. PA 94-114; 625 ILCS 5/11-501(c-16).
8. PA 94-116; 625 ILCS 5/11-501(c-1)(2).
9. PA 94-116; 625 ILCS 5/11-501(c-1)(3).
10. PA 94-116; 625 ILCS 5/11-501(c-1)(4).
11. PA 94-329; 625 ILCS 5/11-501(d)(1)(G) and
(H).
12. PA 94-609; 625 ILCS 5/11-501(d)(2).
13. PA 94-963; 625 ILCS 5/11-501(j) and (k).
14. PA 94-329 and PA 94-609; 625 ILCS 5/11-501(d)
(2).
15. See all versions of 625 ILCS 5/11-501(j) as
contained in PA 94-963.
What about defendants convicted
under the old inconsistent acts?
Have they been, or will they
be, properly sentenced?
2
Page 3
irreconcilable conflict. In case of an irrec-
oncilable conflict the Act last acted upon
by the General Assembly is controlling to
the extent of such conflict. The Act last
acted upon is determined by reference to
the final legislative action taken by either
house of the General Assembly, whether
such final action is passage on third read-
ing in the second house, concurring in or
receding from an amendment, adoption
of a conference committee report, accep-
tance of the Governor's specific recom-
mendations for change, or passage over
the Governor's veto. However, for the pur-
pose of determining the effective date of
laws under Section 10 of Article IV of the
Constitution of 1970 and "An Act in re-
lation to the effective date of laws", ap-
proved July 2, 1971, a bill is "passed" at
the time of its final legislative action before
presentation to the Governor as provided
in paragraph (a) of Section 9 of Article IV
of the Constitution of 1970.
An irreconcilable conflict between 2 or
more Acts which amend the same section
of an Act exists only if the amendatory
Acts make inconsistent changes in the sec-
tion as it theretofore existed.
The rules of construction provided
for in this section are applicable to Acts
enacted by the same General Assembly
throughout the 2 year period of its exis-
tence.
16
All of the public acts at issue here
were passed by the 94th General Assem-
bly. On its face, the Statute on Statutes
opens the door to the argument that PA
94-609, passed on May 20, 2008 and
thus after PA 94-114 and PA 94-116,
controlled sentencing law until June 1,
2008, when PA 95-578 was passed. (Be-
cause PA 94-963 simply republished all
of the earlier inconsistent public acts, its
impact is discounted here). Thus, accord-
ing to this logic, any third or subsequent
DUI (absent aggravating factors) was a
Class 4 felony regardless of the number
of DUI violations in excess of two.
17
However, courts that have ruled on
the issue thus far have found against de-
fendants, holding that the stricter Class 2
felony guidelines apply.
Appellate holdings. In People v
Prouty,
18
the defendant was convicted of
DUI for a third or subsequent time and
sentenced by the trial court under Class
2 felony guidelines as provided in PA 94-
116. The trial court rejected the defen-
dant's claim that he should be sentenced
under Class 4 felony guidelines provided
under PA 94-609. After his motion to re-
consider was denied, the defendant ap-
pealed.
The second district appellate court re-
viewed the legislative histories of both
acts. The defendant argued that although
PA 94-116, as passed on May 16, 2005,
specifically added language that made
the defendant's offense a Class 2 felony,
the passage of PA 94-609 four days later
on May 20, 2005, effectively repealed
the amendment in PA 94-116. PA 94-609
provided instead that the defendant's of-
fense was a Class 4 felony.
The court, citing People v Caraballo,
19
noted the general rule that "when an
act is amended so as to read as it is re-
peated in the amendatory act, portions of
the old law not repeated are deemed re-
pealed."
20
However, the court also noted
that Caraballo held that this rule had to
be interpreted in light of the Statute on
Statutes "as well as the imperatives of
harmonizing legislative acts if reasonably
possible and effectuating the legislature's
intent."
21
Alternative sentencing provisions for pre-6/01/08 DUI offenses
If the appellate court rulings thus far hold up and the enhanced sentencing provisions of PA 94-114 and PA 94-116
ultimately govern offenses occurring prior to June 1,2008,the following general penalties apply.
If instead it turns out that the less severe sentencing provisions under PA 94-609 control for offenses prior to June 1,2008,
then general penalties are as follows:
First DUI
Second DUI
Third DUI
Fourth DUI
Fifth or
Subsequent
DUI
1
Sixth or
Subsequent
DUI
2
Class of offense
Class A
(b)(2)
PA 94-116
Class A
(b)(2)
PA 94-116
Class 2
(c-2)
PA 94- 116
Class 2
Non-
Probationable
(c-4)
PA 94-116
Class 1
Non-
Probationable
(c-4)
PA 94-116
Class X
Non-
Probationable
(c-16)
PA 94-114
First DUI
Second DUI
Third or
Subsequent
DUI
Class of offense
Class A
(b)(2)
Class A
(b)(2)
Class 4
(d)(1)(A)
(d)(2)
__________
16. 5 ILCS 70/6.
17. PA 94-609; 625 ILCS 5/11-501(d)(2).
18. 385 Ill App 3d 149, 895 NE2d 48 (2d D 2008),
appeal denied, 231 NE2d 647, 902 NE2d 1088 (Table
2009).
19. 231 Ill App 3d 685, 596 NE2d 1322 (2d D1992).
20. Prouty at 154, 895 NE2d at 52.
21. Id at 155, 895 NE2d at 52.
__________
1. PA 94-114; 625 ILCS 5/11-501(c-16) provided that a
sixth or subsequent DUI was a Class X felony however, PA
94-116; 625 ILCS 11-501(c-1)(4) provided that a fifth or
subsequent DUI (which by its terms would include a sixth
DUI) was only a Class 1 felony. See discussion above and
the Statutes on Statutes (5 ILCS 70/6) regarding inconsistent
public acts.
2. Id.
3
Page 4
In holding that PA 94-609 did not re-
peal the enhanced sentencing provisions
of PA 94-116, the court began by citing
this admonition in Dickey v Southern Ry
Co:
22
"if two acts may be construed to-
gether so that both may stand, we must
do so" and that the "ultimate goal is to
effectuate the intent of the legislature."
While agreeing that the acts did con-
flict, the court held that they did not "ir-
reconcilably conflict,"
23
reasoning that
(1) PA 94-609 did not explicitly repeal
the amendments of PA 94-116, and (2)
if the legislature had intended such a
repeal it would have lined out the lan-
guage added by PA 94-116 and restored
the previous language. It did not do so,
suggesting that the drafters of PA 94-609
"simply overlooked what had just been
added by PA 94-116."
24
The court's conclusion in Prouty has
been cited with approval in two other ap-
pellate decisions, People v Maldonado
25
and People v Gonzalez.
26
Maldonado
dealt with PA 94-329, which was passed
May 18, 2005, and provided that a DUI
offense by an offender who did not pos-
sess a valid driver's license was a Class 4
felony instead of a Class A misdemeanor.
The court ruled that PA 94-329 was not
invalidated by the later passage of PA 94-
609, which did not contain that enhance-
ment. In Gonzalez, a consolidation of
two cases, the court again held that the
provisions of PA 94-329 were enforce-
able despite the later passage of PA 94-
609.
The appellate rulings suggest that
courts will disregard facial inconsis-
tencies among two or more public acts
passed by the same General Assembly if
the legislative purpose and the failure to
explicitly repeal earlier language indicate
that the later-passed act was not intended
to overturn the former.
Under the previous statutes,
is the sixth or subsequent DUI
a Class 1 or Class X felony?
There is also an inconsistency be-
tween PA 94-114, which provides that a
sixth or subsequent offense is a Class X
felony, and PA 94-116. PA 94-116 was
passed five days later and provides that
an offender committing his or her fifth or
subsequent offense was only guilty of a
Class 1 felony.
27
The reasoning employed in Prouty,
Maldonado, and Gonzalez may not
apply to this inconsistency. While PA 94-
116 did not explicitly repeal the Class X
language in PA 94-114, it did add spe-
cific new sentencing language that made
a fifth or subsequent offense a Class 1 fel-
ony. This is distinguishable from PA 94-
609, at issue in the Prouty line of cases,
where the act simply republished the sen-
tencing scheme as it existed prior to the
enhancements contained in 94-114 and
94-116.
The two sentencing schemes for pre-
June 1, 2008 offenses - one applicable
if the enhanced provisions of PA 94-114
and 94-116 survive, the other if they are
stricken - appear on page 354.
__________
22. 17 Ill 2d 550, 162 NE2d 417 (1959).
23. Prouty at 154, 895 NE2d at 51.
24. Id at 154, 895 NE2d at 52.
25. 386 Ill App 3d 964, 897 NE2d 854 (2d D 2008),
appeal denied, 231 Ill 2d 645, 902 NE2d 1088.
26. 2009 WL 839964 (3d D 2009).
27. PA 94-114; 625 ILCS 5/11-501(c-16) and PA 94-
Reprinted with permission of the Illinois Bar Journal,
Vol. 97 #7, July 2009.
Copyright by the Illinois State Bar Association.
www.isba.org
4
Page 5
116; 625 ILCS 5/11-501(c-1)(4).
Basic DUI offense classifications and penalties
First DUI
Second DUI
Third DUI
Fourth DUI
Fifth DUI
Sixth -plus DUI
Class of offense
Class A
misdemeanor
(c)(1)
Class A
misdemeanor
(c)(1)
Class 2
felony
(d)(2)(B)
Class 2 felony
Non-
Probationable
(d)(2)(C)
Class 1 felony
Non-
Probationable
(d)(2)(D)
Class X felony
(d)(2)(E)
General penalties
Jail / Imprisonment
730 ILCS 5/5-8-3(a),
730 ILCS 5/5-8-1(a)(3-5)
1-364 Days
1-364 Days -
mand. min. of 5
days jail or 240
hrs. comm. serv
(c)(2)
3-7 years
3-7 years
4-15 years
6-30 years
Periodic Imprisonment
730 ILCS 5/5-7-1(d)
Up to 12 months
Up to 12 months
18-30 months
18-30 months
3-4 years
None
Supervision
730 ILCS 5/5-6-3.1(b)
Up to 2 years
None
None
None
None
None
Conditional Discharge
730 ILCS 5/5-6-2(b)
Up to 2 years
Up to 2 years
Up to 4 years
None
None
None
Probation
730 ILCS 5/5-6-2(b)
Up to 2 years
Up to 2 years
Up to 4 years
None
None
None
Fine
730 ILCS 5/5-9-1(a)
Up to $2,500
Up to $2,500
Up to $25,000
Up to $25,000
Up to $25,000
Up to $25,000
Additional penalties for high blood alcohol, transporting child under 16
* DUI violation w/BAC of 0.16 or more
Penalties (in addition to the
general penalties specified above)
Mand. min. 100
hrs. comm. serv
& $500 min. fine
(c)(4)
Mand. min.
2 days jail &
$1,250 fine
(c)(5)
Mand. min. 90
days imprisonm't
& $2,500 fine
(d)(2)(B)
Mand. min.
$5,000 fine
(d)(2)(C)
Mand. min.
$5,000 fine
(d)(2)(D)
Mand. min.
$5,000 fine
(d)(2)(E)
* DUI violation Involving Transport of Child Less Than Age 16
Penalties (in addition to the
general penalties specified above)
Subject to 6
months. jail &
add. mand, min.
$1,000 fine &
25 days comm.
serv in program
benefiting
children
(c)(3)
[This is a Class 2
felony], (d)(1)(k),
(d)(2)(I)
1
Mand.
fine of $2,500 &
25 days comm.
serv in program
benefiting
children. If child
suffered injury
(not great bodily
harm) where the
DUI was the prox.
cause of the injury
then the min.
fine is $5,000 in
addition to the
public serv above
(d)(2)(I)
Mand. min.
$25,000 fine &
25 days comm.
serv in program
benefiting
children
(d)(2)(B)
Mand. min.
$25,000 fine &
25 days comm.
serv in program
benefiting
children
(d)(2)(C)
Mand. min.
$25,000 fine &
25 days comm.
serv in program
benefiting
children
(d)(2)(D)
Mand. min.
$25,000 fine &
25 days comm.
serv in program
benefiting
children
(d)(2)(E)
DUI Sentencing at a Glance
The DUI statutes include a bewildering array of sentencing alternatives based on how many DUI offenses a defendant has
committed and various enhancing factors.The following chart attempts to clarify, if not simplify, DUI sentencing options by
starting with the basic offense classifications and penalties and following with the harsher penalties imposed for more serious
offenses.All statutory subsection references are to 625 ILCS 5/11-501 unless otherwise noted.Also, see the public act for provisions
governing restitution, lab analysis, victim impact panel, surcharges, emergency response, and evaluation/treatment.
5
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Enhanced DUI punishments pursuant to section 11-501(d)* (aggravated DUI)
* DUI Violation while driving a school bus w/ person 18 yrs. or younger on board
First DUI
Second DUI
Third DUI
Fourth DUI
Fifth DUI
Sixth -plus DUI
Class of offense - no add.
penalties beyond those set forth
in the general penalties above
(d)(1)(B)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
*
DUI violation when offendor was involved in m.v accident where DUI was the prox. cause of great bodily harm or disfigurement to another
Class of offense (d)(1)(C)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
Penalties (in addition to the
general penalties specified above)
(d)(2)(F)
2
If sentenced
to term of
imprisonm't min.
1-12 yrs.
(d)(2)(F)
If sentenced
to term of
imprisonm't min.
1-12 yrs.
(d)(2)(F)
If sentenced
to term of
imprisonm't min.
1-12 yrs.
(d)(2)(F)
Min. 1-12 yrs.
(d)(2)(F)
3
Min. 1-12 yrs.
(d)(2)(F)
4
Min. 1-12 yrs.
(d)(2)(F)
5
*
2nd DUI vio. w/ prior conviction for reckless homicide while DUI or a prior conviction under (d)(1)(C) or (d)(1)(F)
Class of offense - no add.
penalties beyond those specified
in the general penalties section
above
(d)(1)(D)
N/A
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
* DUI
violation in school speed zone & inv in an acc'd w/ bodily harm -other than great bodily harm,
perm. disability or disfigurement where DUI is prox. cause
Class of offense - no add.
penalties beyond those specified
in the general penalties section
above
(d)(1)(E)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
* for DUI violation w/ death in a motor vehicle, snowmobile, watercraft or all-terrain vehicle where DUI is prox. cause
Class of offense
(d)(1)(F)
Class 2
(d)(2)(G)
Class 2
(d)(2)(G)
Class 2
(d)(2)(G)
Class 2
Non-
Probationable
(d)(2)(C)
(d)(2)(G)
Class 1
Non-
Probationable
(d)(2)(D)
(d)(2)(G)
Class X
(d)(2)(E)
(d)(2)(G)
Penalties (in addition to the
general penalties specified above)
6
If sentenced
to term of
imprisonm't
min. 3-14 yrs.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
If sentenced
to term of
imprisonm't
min. 3-14 yrs.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
If sentenced
to term of
imprisonm't
min. 3-14 yrs.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
Min. 3-14 yrs.
imprisonm't.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
7
Min. 3-14 yrs.
imprisonm't.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
8
Min. 3-14 yrs.
imprisonm't.
If violation
results in death
to 2 or more
persons then
6-28 years. No
probation unless
court finds
extra-ordinary
circumstances.
(d)(2)(G)
9
* Note that all offendors sentenced under section 11-501(d)(1) who are placed on conditional discharge or probation must serve a minimum term of either 480 hours of
community service or 10 days imprisonment as a condition of condition discharge or probation, in additional to any other penalties. See 625 ILCS 5/11-501(d)(3). Also see
vehicle seizure and forfeiture provisions of 720 ILCS 5/36-1.
6
Page 7
* DUI violation that occurs during period of revocation, suspension for prior DUI, statutory sum. suspension,
leaving the scene of a death of personal injury or reckless homicide
First DUI
Second DUI
Third DUI
Fourth DUI
Fifth DUI
Sixth -plus DUI
Class of offense - no add.
penalties beyond those specified
in the general penalties section
above
(d)(1)(G)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
* DUI violation that occurs while the person did not have a valid driver's license or permit
Class of offense - no add.
penalties beyond those specified
in the general penalties section
above
(d)(1)(H)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
* DUI violation that occurs while the person did not have liability insurance
Class of offense - no add.
penalties beyond those specified
in the general penalties section
above
(d)(1)(I)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
* DUI violation involving an accident while transporting a child under the age of 16 resulting in bodily harm to the child (other than great bodily harm)
Class of offense
(d)(1)(J)
Class 4
(d)(2)(A)
Class 4
(d)(2)(A)
Class 2
(d)(2)(B)
Class 2
Non-
Probationable
(d)(2)(C)
Class 1
Non-
Probationable
(d)(2)(D)
Class X
(d)(2)(E)
Penalties (in addition to the
general penalties specified
above)
10
Mand. Fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
Mand. fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
Mand. Fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
Mand. fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
Mand. fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
Mand. fine of
$2,500 & 25
days comm.
serv in program
benefiting
children
(d)(2)(H)
__________
1. 625 ILCS 5/11-501(d)(2)(I) provides that a
violation of 625 ILCS 5/11-501(d)(1)(K) (2d DUI that
occurs while transporting a child under the age of 16)
is a Class 2 felony; 625 ILCS 5/11-501(d)(2)(A), on
the other hand, provides that a violation of 625 ILCS
5/11-501(d)(1)(J) (the same offense which in addition
results in bodily harm to the child (other than great
bodily harm)) is only a Class 4 felony. If a court were
to find that these provisions violate the proportional
penalties clause of the Illinois Constitution, defendants
convicted under them would be sentenced under Class 4
guidelines. See Ill Const 1970, Art I, S11 and the Illinois
Supreme court's recent decision in People v Klepper,
2009 WL 711126.
2. 625 ILCS 5/11-501(d)(2)(F) states that a
defendant who receives a prison term for this offense
shall be sentenced to not less than one nor more than
12 years. However, the penalty for the offense ranges
from Class 4 (1-3 years), Class 2 (3-7 years), Class 1
(4-15 years), and Class X (6-30 years), depending on
the number of prior offenses, if any. If a court finds
these provisions to be conflicting or ambiguous, the
rule of lenity would appear to require that defendants
be sentenced to a minimum of one year to a maximum
of the highest sentence provided for by the class of the
offense or 12 years, whichever was lower. Thus, the
penalty range would be as follows: for a Class 4 offense,
1-3 years; for a Class 2 offense, 1-7 years; for a Class
1 offense, 1-12 years; and for a Class X offense, 1-12
years. See People v Perry, 224 Ill 2d 312, 864 NE2d 196
(2007).
3. 625 ILCS 5/11-501(d)(2)(F) provides for a
sentencing range of 1-12 years only if the defendant
is sentenced to a term of imprisonment. However,
since this offense is nonprobationable, a sentence of
imprisonment would appear to be mandatory.
4. Id.
5. Id.
6. 625 ILCS 5/11-501(d)(2)(G) states that a
violation of 625 ILCS 5/11-501(d)(1)(F) is a Class 2
felony, regardless how many prior DUI offenses the
defendant may have. It further states that an offender
may be sentenced to a prison term of not less than three
nor more than 14 years for a single death, unless the
court finds that extraordinary circumstances make the
offense probationable. However, the sentencing range
is 3-7 years for a Class 2 offense, 4-15 years for a Class
1 offense, and 6-30 years for a Class X offense. If these
provisions were determined to be in direct conflict or
ambiguous, the rule of lenity would appear to require
that defendants sentenced to prison must fall within a
range of a minimum of three years to a maximum of 14
years or the sentencing range provided for by the class
of the offense or 14 years (for a single death), whichever
was lower. Accordingly, the sentencing range for a
Class 2 offense would be limited to 3-7 years; a Class
1 offense, 3-14 years; and a Class X offense, 3-14 years.
See Perry, cited in note 2.
7. 625 ILCS 5/11-501(d)(2)(G) makes this offense
nonprobationable unless the court finds extraordinary
circumstances. However, based on the number of prior
DUI offenses, this offense is nonprobationable. If these
provisions were determined to be in direct conflict or
ambiguous, the rule of lenity would appear to require
that defendants be probation eligible. See Perry, cited in
note 2.
8. Id.
9. Id.
10. The mandatory fine of $2,500 and 25 days of
community service in a program benefiting children
provided for under 625 ILCS 5/11-501(d)(2)(H) for
violations of 625 ILCS 5/11-501(d)(1)(J) is in addition to
any other sanction. Since 625 ILCS 5/11-501(d)(2)(B-E)
provides for an additional fine of $25,000 and 25 days
of community service in a program benefiting children
for an offense containing the same elements - beginning
with the third DUI - it is unclear whether these penalties
for third and subsequent DUIs are cumulative.
7