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.

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