Tuesday, December 23, 2008

DUI Loser?

IDOT is funding a major new DUI enforcement initiative in Illinois to the tune of $1.8 million dollars of taxpayer funds. Of that, $1 million is going to pay for stepped up police enforcement, and $800,000 is now being used for an ad campaign.

Why not spend all of that money on enforcement? Because the ISP has decided to play "nahny-nahny-boo-boo" and spend $800,000 on name calling. Those who are arrested for DUI are now branded "losers" in a new TV ad, which you can view by clicking here.

Putting aside the question of whether spending public funds on some juvenile tactic to exert yet more pressure on "potential" offenders, let's take a look at some of those "losers":

George Bush - Sitting President of the United States
Mel Gibson - actor/director
Kiefer Sutherland - actor
Bill Mitchell - U.S. Congressional Representative from Illinois
Vivica A. Fox - actress
Rip Torn - actor
Mike McGavick - former CEO of Safeco, and onetime candidate for U.S. Senate
Mickey Rourke - actor
Paris Hilton

The truth is that the list goes on forever, and I'm sure the reader can think of a few I've left out. Quite aside from these "losers" are many of my current and former clients who are (and continue to be) lawyers, doctors, research scientists, engineers, teachers, fathers, mothers, and just plain good people. The fact that someone is arrested for DUI hardly makes them a loser, especially given ever looser definitions of what exactly is a DUI.

Are some people arrested for DUI losers? Sure are - and you can probably name a few off the top of your head who are famous for it. But when will the powers that be decide they want to treat DUI in a way that makes sense? Just about nobody goes out to have a good time and to commit the crime of DUI. Part of the reason DUI is so scary is the impairment of the driver's JUDGEMENT, right? So the more that person drinks, the more their ability to judge their situation accurately is affected, right? And when making decisions, the alcohol will impair their ability to make a good decision, right? When you really think about it, the problem of DUI becomes a great deal more complex than calling someone a "loser", doesn't it?

Tattooing people with "loser" because they've been arrested is silly and sophomoric, but under those circumstances, the Illinois DUI law firm of Fagan, Fagan & Davis and our colleagues will be glad to be known as the tattoo removal service!

Thursday, November 27, 2008

Illinois DUI gets a hatchet-job from the press again . . .

The AP reports that some 45,000 drivers have at some point been found guilty of a DUI violation in Illinois.  They make quite a lot of this, and then comes this: that is out of 8.5 million drivers.  One half of a percent.  

One obviously very emotional person quoted said "If you choose to drink and drive, you shouldn't get latitude . . . do you get latitude if you pick up a gun and shoot someone in the head? No, you don't."  Let's separate the truth from the sensationalism.  
  1. It is not illegal to "drink and drive" period.  It is illegal to drink to the point of impairment and drive. 
  2. Latitude? The latitude she's talking about is that some Illinois motorists with a first DUI do not lose their licenses beyond a temporary suspension of three months up to three years. Others lose their licenses for 1, 5 or 10 years based on their history, and then get the opprotunity to prove to the Secretary of State of Illniois that they deserve another chance. Maybe they get that chance, maybe not.
  3. Many of those 45,000 had one Illinois DUI, a single misjudgement, maybe many years past.  
  4. One important reason DUI is problematic is that alcohol in sufficient amounts impairs one's judgement.  Most people driving while under the influence have no intention of doing so - they are merely exhibiting poor judgement.  
  5. Most collisions involving DUI occur at levels of 0.16 or above, double the legal limit.  Many of those which involve motorists are not necessarily caused by the impaired motorist. In 2006 in Illinois, there were 1,254 traffic-related deaths total.  Of those 594 were "alcohol related".  Not caused by an impaired motorist, just "alcohol related," which might include any motorist, at fault or not, who had any detectable amount of alcohol in their system.  
  6. The Secretary of State estimates the average cost of a DUI conviction at $15,000.00. Sound like latitude?
  7. Want less DUI in Illinois? One way is to undo the arbitrary and baseless change from a 0.10 per se DUI law to 0.08.  0.08 simply widens the net by loosening the definition of what a crime.  This change was based on absolutely no scientific data.  One effect is that officers are spread ever more thinly.  While busy arresting people who may not exhibit any significant impairment or be any danger to others on the road for fear their jobs are at risk, Illinois law enforcement officers have less time to spend watching for more serious violators.
The fact is, this kind of sensasionalism does nothing for public safety.  Sane, rational study would be welcome, but phony hack-job publicity is easier.

Tuesday, November 18, 2008

Attorneys facing DUI in Illinois

Several recent disciplinary actions taken by the Illinois Attorney Registration Disciplinary Commission (ARDC) serve as a poignant reminder to just one of the ways that a DUI arrest can affect those of us who maintain professional licensing.

Illinois Supreme Court Supreme Rule 761(a) requires an attorney admitted to practice in Illinois who is convicted in any court of any felony or misdemeanor to notify the ARDC Administrator of the conviction in writing within thirty days of the entry of the judgment of conviction. In at least one recent case, an Illinois attorney's failure to do so after a DUI arrest in Illinois ultimately resulting in a conviction for Reckless Driving resulted in his disbarment.

While this isn't a typical result of a failure to report, and the attorney's actions in dealing with the ARDC regarding his failure to report certainly contributed to his downfall, most professional regulatory boards have some similar requirement.

Those with any professional licensing facing DUI or other misdemeanor or felony charges in Illinois should take heed.

Wednesday, November 12, 2008

One Field Sobriety Test Making a Comeback in Illinois DUI Courts

The Horizontal Gaze Nystagmus test, or HGN, has had a tough time this year, and rightfully so. In a landmark case, People vs. McKown, the Supreme Court ruled that this mystical test had to be subjected to a rigorous legal analysis known as the Frye standard. The HGN test is used in Illinios as part of a battery of Standardized Field Sobreity tests, and is used by police officers throughout the state of Illinois to develp probable cause to arrest people.
However, the test is very, very limited. In fact, there are more than a hundred distinct causes on gaze nystagmus, and it would be a rare officer indeed who was trained to distinguish when alcohol is the only factor causing the telltale signs they are trained to examine.
After the ruling by the Supreme Court of the State of Illinois, the circuit court below determined that the test meets the standard, but imposed limitations on the general requirements for admissibility in evidence, and for its interpretation under the law. The decision was returned to the Illinois Supreme Court for futher review.
Because of those limitations, make sure your DUI attorney understands the Illinois law and protocols required for even the most limited degree of reliability of the Horizontal Gaze Nystagmus test.

Thursday, September 18, 2008

DUI or Diabetes?

If ever anyone wondered whether police arrest the innocent, see this story about a diabetic woman wrongfully accused of DUI. This poor woman was arrested, her name dragged through the mud, all because of fear. See the American Diabetes Association website for information about the many symptoms that Police should look for regarding Diabetes.

UPDATE: the problems facing diabetics as they age grow progressively more complex, and you can find more information about that at the National Council for Aging Care.

Friday, September 12, 2008

A police officer in Illinois stopped me for DUI - what do I say and what are my rights under the law?

Very often, clients (after the fact, of course) are curious whether they did the right thing taking the breath test or doing field sobriety testing when facing an DUI arrest. Under Illinois law, you do have certain rights, including the right to "withdraw your implied consent" to any testing of any kind. If that sounded like legalese, it is. So here is a simple guide in plain English adapted from my Illinois DUI law firm website:

  • First and most importantly always be respectful to police officers. They will attempt to use attitude, yours or theirs, to open your mouth and get you to make statements which can be used against you to prove DUI in court. That's their JOB, and they are skilled! Under Illinois DUI law, until you are arrested, anything you say is fair game, and they don't need to warn you of your right to remain silent until that point to use those statements! You also need to remember that underneath their professional demeanor, police officers are people who respond to disrespect the same way you or I do, and on the street, they have all the power you give them. Let your lawyer do the fighting - that's what an attorney is for!

  • Second, do not make any statements beyond information that can be found on your driver license! You MUST provide any information contained in your Driver's License, insurance and registration. Other than that, memorize - "I respectfully decline to make any statements." Nothing will get you arrested faster than saying "Gee officer, I'm just way too drunk to drive!" Again, let your lawyer do the talking later.

  • Third, all street side field sobriety tests, including the test where you follow the officer's finger or pen from side to side with your eyes, as well as the portable breath test on the street, should be politely refused. This information can be used against you in court in Illinois either to prevent your attorney from addressing your suspended license, or to assist in prosecution of your DUI case.

  • Fourth, in general, breath or chemical testing should be refused unless you are absolutely certain you will test under the legal limit. The legal limit in Illinois for alcohol is .08, and the legal limit for drug based DUI is the presence of any amount of an illegal substance. Blowing under the legal limit does not mean you will not be arrested and charged for DUI. Although refusing breath or chemical testing will subject you to significantly more severe license suspension penalties, if you follow all four of these rules, we have a much better chance of getting your license back altogether, as well as winning the DUI case itself. Also, a positive test above the threshold will result in additional DUI charges, and in some cases, additional minimum penalties. If you are under twenty-one, any positive result will result in a suspended license, but so will a refusal.

In some cases and under rare circumstances, officers can actually take blood forcibly. Additionally, certain counties have taken to having on-call Judges to issue warrants to obtain blood tests no matter what you do, such as was recently done in Lake county and Kane county, Illinois. While I personally question how close this brings us to a police state and calls into question the entire concept of Judicial independece, that's another topic for another day. Look for it soon.

Wednesday, September 3, 2008


Illinois DUI law is constantly changing. Over the last year, Illinois' DUI statute underwent no less than 7 significant changes. Since tough legislation is popular, things get tougher for the average citizen at every turn. There's no waiting to see if the last change had any effect on public safety, it's on to the next thing MADD or AAIM decides is important (note that AAIM's website is funded by IDOT . . . isn't that something).
In this environment, it bears saying the obvious . . . drinking and driving is not illegal. Did you realize that? Truly, the limit of how much one can drink and expect to stay out of handcuffs is ever changing, and every more restrictive. The fact remains that there are no other "crimes" I can think of after ten years of practice as a criminal and DUI defense attorney in Illinois which require an officer to run you through some tests in order to figure out whether what he just saw happen was a crime, all while the "suspect" is under the impression he or she committed no crime and never intended to.
Some of these statements are going to need to be expanded on, and I hope to do so in the near future. Check back when you get a chance. For now, suffice it to say this - if you or someone you love face a charge of DUI in Chicago or the surrounding Illinois counties, do some research, get a lawyer as soon as possible, and be prepared to fight for yourself.