Illinois Concealed Carry and DUI Law: The Confusion – Daniel Kay, Attorney

Double Jeopardy: Drinking and the New Concealed Carry Law

Come January as Illinois’ new CC (concealed carry law roles into full effect there are bound to be a host of questions as the newly minted licensee start interacting with police, businesses and members of the general public.  During a recent phone call with State Representative Brandon Phelps, he expressed an understanding that in the upcoming legislative sessions they were going to have to go back and clean-up some areas of the law.

One area I might suggest that will need some work is 430 ILCS 66/70(d).  This is the area of the code indicates it is a violation for an individual to be in possession of a concealed weapon at a time when they are under the influence of alcohol or other drug, etc. and then the section cross references to the DUI provision of the vehicle code (625 ILCS 11-501(a).  The DUI code provides for several theories for charging a DUI offense (a.1 = 0.8, a.2 = officer observation, etc.). 430 ILCS 66/70(d) also provides that it is a Class A Misdemeanor for a first offense or second (to possess a CCW) and the its a Class 4 felony.

Are you listening? If you get a DUI at a time when you have a CCW, you could be charged with two separate Class A offenses.  As though you didn’t need any more reason to not drink and drive.

The analysis is simple and straight forward for both the arresting officer and the defendant as long as we stay with a simple fact pattern where you  were driving at a time when you were CCW.

For those who are not familiar with them, DUI’s will typically follow this normal flow in action: officer sees car speeding or otherwise engaged in some bad driving; he/she pulls the driver over; strong odor of alcohol; usually an admission to drinking “a couple”; blood shot eyes; fumbling for license and insurance card; failure on standard field sobriety tests; failure on roadside portable breath test; back at the station subject either refuses or submits to evidentiary breath test.

A person can refuse all field sobriety test, portable breath test and the evidentary breath test back at the station (at great cost to his driver’s license).

What happens if we remove the car from the scenario and simply have the officer come across a person with a beer in his hand who has obviously been drinking and who also happens to have a CCW.  To be absolutely clear, consuming alcohol is markedly different from being “under the influence” or drunk or buzzed.

What procedures are to be followed by the officer?

What rights does the suspect have?

Does the person have the right to refuse the test if the officer request him to take a PBT?

Does the person person have the right to refuse to take an evidentiary breath test back at the police station – as he would with a regular DUI?

What should be the consequences?

The law and the problem

If you are in possession of one of the brand new concealed carry licenses in Illinois you will be in a small but determined set of individuals who have waded the wadded the bureaucratic requirements hoops to get a license. You are probably very conscientious and want to do the right thing and simply obey the law, to the degree that you can figure out what it is.
For the sake of argument, lets assume that you understand that its a good idea to not drink and drive.  Did you know, however, its a violation under 430 ILCS 66/70(d) to carry your concealed weapon while your under the influence of alcohol (a Class A misdemeanor for a first or second violation and a Class 4 felony for a third violation).
If those words “under the influence” have a familiar ring to them – they should as they were cross referenced back to the DUI statute 625 ILCS 11-501(a). This particular section is referring to the DUI provision found in at 625 ILCS 5/11-501.  That particular section (a) of the code as most people might be familiar with, and it provides that: A person shall not drive or be in actual physical control of any vehicle within this State while the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11-501.2 or under the influence of alcohol. Actually, the DUI statute goes on to further discuss other drugs and compounds, etc.

But here is a tough question, what exactly is the method does law enforcement use to establish someones level of intoxication?  A breath test?  A field sobriety test?  Does the subject have right to refuse the test like they would with a regular DUI and what would be the penalty when that happens?  Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.
While the move on the part of the legislature to refer back to the DUI code does make sense, the move to

Its not too hard envision a scenario where an individual might be otherwise lawfully consuming alcohol (which you

Under the new concealed carry legislation, 430 ILCS 66/70 a person is

Violations

(a) License is revoke when you become ineligible for a CCW or FOID.
(This essentially means “by operation of law” and has the effect of instantly revoking your license without the need for any further action by an individual or agency once you do something stupid and become ineligible.)  The key term here is “revoked” as opposed to “suspended” which is meaningful in the sense that suspended is for a period of time whereas revoked is meant to be indefinite and would require the person to take some affirmative step to have the matter reinstated= presuming that that’s possible at all.

(b) License suspended if you get any sort of Order of Protection including: emergency type (where you have no chance to appear), plenary, or interim variety.  You are suspended during the entire duration of the O.P. You should surrender your license to the court at the time the court enters the order or to the police who serve you with the order. The local officials have 7 days to notify ISP of the surrender of your license and are to send it to ISP.

(c) License invalid when it expires and otherwise renewed.
(d) Can’t carry while under the influence of alcohol, other drug or drugs, intoxicating compound or combination of compounds, or any combination thereof, under the standards set forth in subsection (a) of Section 11-501 of the Illinois Vehicle Code.
    
A licensee in violation of this subsection (d) shall be guilty of a Class A misdemeanor for a first or second violation and a Class 4 felony for a third violation. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for a third violation.
(e) Except as otherwise provided, a licensee in violation of this Act shall be guilty of a Class B misdemeanor. A second or subsequent violation is a Class A misdemeanor. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for 3
or more violations of Section 65 of this Act. Any person convicted of a violation under this Section shall pay a $150 fee to be deposited into the Mental Health Reporting Fund, plus any applicable court costs or fees.
(f) A licensee convicted or found guilty of a violation of this Act who has a valid license and is otherwise eligible to carry a concealed firearm shall only be subject to the penalties under this Section and shall not be subject to the penalties under Section 21-6, paragraph (4), (8), or (10) of subsection (a) of Section 24-1, or subparagraph (A-5) or (B-5) of paragraph (3) of subsection (a) of Section 24-1.6 of the Criminal Code of 2012. Except as otherwise provided in this subsection, nothing in this subsection prohibits the licensee from being subjected to penalties for violations other than those specified in this Act.
(g) A licensee whose license is revoked, suspended, or denied shall, within 48 hours of receiving notice of the revocation, suspension, or denial surrender his or her concealed carry license to the local law enforcement agency where the person resides. The local law enforcement agency shall provide the licensee a receipt and transmit the concealed carry license to the Department of State Police. If the licensee whose concealed carry license has been revoked, suspended, or denied fails to comply with the requirements of this subsection, the law enforcement agency where the person resides may petition the circuit court to issue a warrant to
search for and seize the concealed carry license in the possession and under the custody or control of the licensee whose concealed carry license has been revoked, suspended, or denied. The observation of a concealed carry license in the possession of a person whose license has been revoked, suspended, or denied constitutes a sufficient basis for the arrest of that person for violation of this subsection. A violation of this subsection is a Class A misdemeanor.
(h) A license issued or renewed under this Act shall be revoked if, at any time, the licensee is found ineligible for a Firearm Owner’s Identification Card, or the licensee no longer possesses a valid Firearm Owner’s Identification Card. A licensee whose license is revoked under this subsection (h) shall surrender his or her concealed carry license as provided for in subsection (g) of this Section.
This subsection shall not apply to a person who has filed an application with the State Police for renewal of a Firearm Owner’s Identification Card and who is not otherwise ineligible to obtain a Firearm Owner’s Identification Card.

Section 70.
Violations
(a) A license issued or renewed under this Act shall be revoked if, at any time, the licensee is found to be ineligible for a license under this Act or the licensee no longer meets the eligibility requirements of the Firearm Owners Identification Card Act.
(b) A license shall be suspended if an order of protection, including an emergency order of protection, plenary order of protection, or interim order of protection under Article 112A of the Code of Criminal Procedure of 1963 or under the Illinois Domestic Violence Act of 1986, is issued against a licensee for the duration of the order, or if the Department is made aware of a similar order issued against the licensee in any other jurisdiction. If an order of protection is issued against a
licensee, the licensee shall surrender the license, as applicable, to the court at the time the order is entered or to the law enforcement agency or entity serving process at the time the licensee is served the order. The court, law enforcement agency, or entity responsible for serving the order of protection shall notify the Department within 7 days and transmit the license to the Department.
(c) A license is invalid upon expiration of the license, unless the licensee has submitted an application to renew the license, and the applicant is otherwise eligible to possess a license under this Act.
(d) A licensee shall not carry a concealed firearm while under the influence of alcohol, other drug or drugs, intoxicating compound or combination of compounds, or any combination thereof, under the standards set forth in subsection (a) of Section 11-501 of the Illinois Vehicle Code.
A licensee in violation of this subsection (d) shall be guilty of a Class A misdemeanor for a first or second violation and a Class 4 felony for a third violation. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for a third violation.
(e) Except as otherwise provided, a licensee in violation of this Act shall be guilty of a Class B misdemeanor. A second or subsequent violation is a Class A misdemeanor. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for 3
or more violations of Section 65 of this Act. Any person convicted of a violation under this Section shall pay a $150 fee to be deposited into the Mental Health Reporting Fund, plus any applicable court costs or fees.
(f) A licensee convicted or found guilty of a violation of this Act who has a valid license and is otherwise eligible to carry a concealed firearm shall only be subject to the penalties under this Section and shall not be subject to the penalties under Section 21-6, paragraph (4), (8), or (10) of subsection (a) of Section 24-1, or subparagraph (A-5) or (B-5) of paragraph (3) of subsection (a) of Section 24-1.6 of the Criminal Code of 2012. Except as otherwise provided in this subsection, nothing in this subsection prohibits the licensee from being subjected to penalties for violations other than those specified in this Act.
(g) A licensee whose license is revoked, suspended, or denied shall, within 48 hours of receiving notice of the revocation, suspension, or denial surrender his or her concealed carry license to the local law enforcement agency where the person resides. The local law enforcement agency shall provide the licensee a receipt and transmit the concealed carry license to the Department of State Police. If the licensee whose concealed carry license has been revoked, suspended, or denied fails to comply with the requirements of this subsection, the law enforcement agency where the person resides may petition the circuit court to issue a warrant to
search for and seize the concealed carry license in the possession and under the custody or control of the licensee whose concealed carry license has been revoked, suspended, or denied. The observation of a concealed carry license in the possession of a person whose license has been revoked, suspended, or denied constitutes a sufficient basis for the arrest of that person for violation of this subsection. A violation of this subsection is a Class A misdemeanor.
(h) A license issued or renewed under this Act shall be revoked if, at any time, the licensee is found ineligible for a Firearm Owner’s Identification Card, or the licensee no longer possesses a valid Firearm Owner’s Identification Card. A licensee whose license is revoked under this subsection (h) shall surrender his or her concealed carry license as provided for in subsection (g) of this Section.
This subsection shall not apply to a person who has filed an application with the State Police for renewal of a Firearm Owner’s Identification Card and who is not otherwise ineligible to obtain a Firearm Owner’s Identification Card.

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