Thursday, August 13, 2009

6 months jail for yawning in an Illinois criminal courtroom

As a lawyer, it surprises me sometimes when people call or visit my office seeking legal advice, then ask "do I need a lawyer for this?" My typical response is that my younger brothers all grew up with the law at their breakfast table (Dad is a lawyer, and as such, frequently worked through dinner - I wasn't paying attention to that fact and here I am), but I wouldn't send any of them to court alone for a speeding ticket.
Now, thanks to an Illinois criminal court Judge, I have another example why apparently, not even observers attending court in support of a loved one are safe when entering a courtroom:
Judge sentences man to 6 months in jail for yawning --

Posted using ShareThis

Friday, July 3, 2009

This July 4th we celebrate our freedom - except for those who drink and drive?

July 4th. A day we spend remembering the greatness that is the United States of America and join together in gratitude for our freedoms!

Except if you had the audacity to have a beer before heading home from the fireworks.

Yes, this weekend, Kane county will "host" another one of its "No Refusal Weekends" and coerce people into giving breath samples and blood samples at the whim of an officer. You see, when arrested for an Illinois DUI, it is implied that you "consent" to submit to such testing unless you withdraw that consent. Why might you withdraw that consent? Well, maybe you feel the officer hasn't been totally fair up to that point with his silly acrobatic tests designed to make you fail. Maybe you don't trust these chemical tests in these contraptions because you know they aren't to be trusted. Or maybe you just feel like you have a Constitutional right to shut up (you do).

However, this weekend in Kane county, if you withdraw your consent to testing, the officer will threaten you. Not just with the standard stuff about a longer license suspension (in many cases just a minor inconvenience now, but that's for another time), but with . . . a warrant.


They'll get a warrant. My opinion? Good - let 'em. That way, the Judge has to decide whether the officer has probable cause to obtain the sample, and I'd rather have a Judge decide. Taking away the right of a person to refuse chemical testing means one thing to an officer - he doesn't have to work real hard, just do the minimum. If they can rely on a machine, they can turn off their brains. Apparently, most people don't think of that, because once faced with a warrant, they just cave. In the last "No Refusal Weekend" Kane county conducted, exactly one fellow made them get a warrant. Too bad.

Maybe more of us should remember, and exercise our rights this July 4th weekend.

Thursday, June 18, 2009

Look out - Ready for Driving Under the Influence of a parasite?

Get ready. Here it comes. Scientists hypothesize that a parasitic disease known as toxoplasmosis can impair your ability to safely operate a motor vehicle. Of course, since money could be made here, Illinois' crack legislature is probably already thinking about how to criminalize this in the Illinois Vehicle Code to make you safer!
Just think, the person driving down the road next to you could be under the influence of a tiny parasite and cause a crash. I can see Illinois State Troopers out with medical test kits, DUI (Driving Under Infection) Roadblocks set up near hospitals (where else are you going to go with a parasite?). Brilliant! Can't wait.

Wednesday, April 22, 2009

Search and Siezure - Landmark case from SCOTUS

It isn't often a landmark case on the issue of search and siezure comes down from the Supreme Court on the side of the defense, but that's just what happened Monday in the case of Arizona v Gant.

In case after case, and certainly in many Illinois DUI arrests, officers freely search the vehicle of the suspect in custody without regard to any Constitutional considerations, and some of those DUI cases become Illinois criminal defense matters as well. The old rule was fairly put as - if you are under arrest, your car is subject to search under the theoretical need of the officer to secure the scene and maintain "officer safety". In other words, if you were in cuffs in the back of the squad car, the officer could make sure there wasn't a knife or gun in the glove compartment so that you couldn't exit the locked squad car, uncuff yourself, knock the officer over the head, grab the gun and shoot him. Obviously a very likely scenario.

The new rule makes more sense. When the police arrest someone in a vehicle, the officer can search the vehicle only under one of two circumstances. In very basic terms, those two circumstances are:
  • The suspect might in some way gain access to the vehicle; or
  • The officer is searching for evidence related to the reason for the arrest.
Other than that, searching a vehicle is a non-starter. In Arizona v Gant, the police arrested Gant for driving with a suspended license, and promptly locked him safely away in handcuffs in the back of their squad car. They then rifled through his car and found cocaine in a jacket on the seat of the vehicle, and charged him with possession of a controlled substance. The Supreme Court acted to protect the sanctity of the Fourth Amendment to the United States Constitution and to protect you.
What do you think about Arizona v Gant?

Tuesday, April 21, 2009

Get ready for the DUI Arrest Tweet

In the vast array of tools in use to shame people arrested for DUI in Illinois and other states, I can't imagine MADD, AAIM and other knee-jerk act-without-thought emotional response types passing up something like this. I'm talking about an apparent gag by a University of North Texas student. Senior Brian Baugh apparently had some fun with Twitter and sent up some tweets purporting to list recent arrests, complete with mug shots from the "Denton Police".

So how long until we see a DUI Arrest Twitter page from the Chicago Police Department? Will apology tweets be issued when my clients find their DUI cases dismissed or they are found not guilty? I plan to insist on it - what do you think?

Monday, April 13, 2009

Arrest does not equal guilt

An off-duty Chicago police officer was arrested yesterday after he was alleged to have caused a fiery crash while driving drunk on Illinois roads. After a hearing, Judge Panarese set bond for officer Frugoli at $500,000. Fights broke out and the crowd got more than a bit unruly, upset that Frugoli was "a free man". Apparently, not only did they forget that Mr. Frugoli is innocent until he either enters a plea of guilty or is proven to be guilty, they also grossly misunderstand the purpose of bond.
Bond is meant to ensure the appearance, cooperation and compliance of a defendant facing criminal charges in Illinois courts. That's pretty much it. Failing to show up in Chicago's criminal court at 26th and California, committing another crime or refusing to comply with the lawful orders of a judge will result in the loss of the entire bond amount. A Chicago cop with no other criminal history? $50,000 of his hard earned cash ought to do that job just fine.

Tuesday, April 7, 2009

DUI? You're fired!

Love watching Khloe Kardashian on NBC's Celebrity Apprentice with Donald Trump? Too bad. You see, the Donald apparently lives in a cave, and didn't know that Khloe Kardashian had a DUI, leading to this:

Without any regard whatsoever for the individual facts of her case, and having no regard for the fact that Ms. Kardashian has already been punished by the Court and undergone treatment, attended classes and more, Trump instantly jumped to the worst possible consequences of a DUI. Citing MADD and specifically alcohol-related deaths (more on that bit of misdirection another time), Trump apparently placed Khloe Kardashian's DUI on the same level. I don't know, did she cause an accident? Hurt anyone? To "The Donald" and unfortunately to many people, all DUI cases are the same. Like so many, Khloe falls victim here to the stigma of a DUI.

For this very reason, anyone facing a DUI arrest must proceed carefully. When facing a DUI arrest in Illinois, contact an Illinois DUI attorney who will carefully analyze your case and give you the best chance at an aggressive defense. The Cook county based DUI law firm of Fagan, Fagan & Davis offers a free consultation. Learn more now at

Thursday, March 19, 2009

ASA O'Reilly gets it!

Kudos to Cook County ASA Lawrence X. O'Reilly. Really. It isn't often you'll see something like that here, but I'm sincere.

A recent Chicago Sun-Times article reports that ASA O'Reilly, supervisor of Chicago's Cook County Traffic Division is calling on the feckless and beleaguered Chicago Police Department to make sure those police officers who focus on DUI enforcement be assigned squad cars equipped with video cameras.

Mr. O'Reilly notes that video equipment will benefit police officers and help protect the rights of those they encounter.

Too true.

As any seasoned Illinois DUI attorney will tell you, many a video has dramatically affected the course of a DUI prosecution. I've reviewed over a thousand arrest videos. Some outright contradicted the officer's written reports, while others merely raised questions. Quite a few strongly supported the officer's version of the events. In those cases, my clients appreciated the clarity of a look back in time.

Not long ago, a very experienced police officer from a large town in suburban Cook county discussed his video experience with me, angry that his municipality had decided to pull the video machines from squad cars (they were losing too many cases because of a few bad eggs, and this was their solution).

Officer C, as we'll call him, recalls a perfectly average DUI arrest. Nice, clean-cut middle-aged lady. Well dressed and well mannered. No trouble or guff at all ending in a moderate 0.13 breath result. That all changed when she returned to the police station two hours after her release to complain that officer C had called her horrible names, verbally abused her and slammed her face-first onto the hood of his car. Ouch.

Maybe she just forgot that he mentioned the video. Hmm? Officer C's commanding officer reviewed the video right then and there and told the woman where to go.

The point of course, is that transparency in law enforcement is a good thing, but more on that later . . .

Thursday, February 26, 2009

Bad Boyz of Chicago - Chicago PD DUI Hat Trick

First, Chicago police officer John Haleas was found to be fabricating DUI cases last April (and currently faces related felony criminal charges), then earlier this week the Chicago Sun-Times reported that Chicago police officer Joe Parker stands accused of doing much the same. And today the Chicago police face yet another black eye - Chicago police officer Richard Fiorito faces a federal lawsuit alleging he, too is ready to make up a DUI case from thin air.

To be sure, this is not a good week for the CPD, and Cook County States Attorney Anita Alvarez cannot be very pleased to have to deal with this in her first months in office.

Probably more miserable tonight is embattled Superintendant of Chicago Police Jody Weis, who just a few days ago, refused to comply with an order by U.S. Magistrate Maria Valdez requiring the Department turn over information about officers with multiple complaints. Talk about bad timing!

Inexplicably, Weis, who is sworn to uphold the Consitution, and to protect the public, argued that turning over the information would “compromise officers’ performance, threaten safety, reduce morale and improperly impugn many officers’ otherwise well-deserved good reputations.”

Superintendant Weis - given the accusations against officers Haleas, Parker and Fiorito, don't you think that not turning over the information does more to "threaten" public safety? Shouldn't you be concerned that the actions of these officers "reduce morale" of their fellow officers? Isn't it time for you to act to protect the public from official misdconduct? Doesn't the act of sheltering officers repeatedly accused of misconduct "impugn many officers' otherwise well-deserved good reputations?"

DUI is punishable in Illnois by up to 364 days in jail and up to $2500 in fines plus costs. Defendants stand to lose their licenses, thousands of dollars, their freedom, their reputations, and in some cases their jobs. Stop playing hide the ball - Chicago police officers need to know their credibility and professionalism is fundamental to the performance of their duties and is not subject to compromise.

Tuesday, January 6, 2009

Illinois DUI law reporting - Wrong, Wrong, Wrong!

Is journalism dead? I really have to ask after reading the headlines and news stories published by the dozens just like those above. What's the problem? They are simply not true.

Illinois' new DUI law in effect January 1, 2009 creates no new requirement that a BAIID or "Breath Alcohol Ignition Interlock Device" be installed upon conviction for DUI. Such a requirement would be ludicrous, as any motorist in Illinois convicted of DUI will find their driver's license revoked in short order. Revocation means no driving. None.

The new law does, however, punish those who still enjoy the presumption of innocence our society so obviously cherishes (insert sarcasm as needed).

Here's how it really works:
  1. A motorist is arrested for DUI
  2. The arresting officer requests that motorist, now accused of DUI, to submit to a breath, urine or blood test
  3. The motorist either refuses to do so, or submits to testing
  4. If the motorist either refuses or submits to tests demonstrating either a 0.08 or above blood or breath alcohol content or the presence of a substance such as marijuana (for example), the arresting officer serves a notice of suspension on the motorist
  5. 46 days later, the motorist's privilege to drive in the state of Illinois is suspended, either for 6 months (for submitting) or for one year (for refusal) assuming they have had no prior DUI or DUI-based suspension within five years
  6. 30 days after that happens, if the motorist chooses to be able to drive, they may obtain what is called an MDDP or "Monitored Device Driving Permit", install a BAIID on their vehicle, and drive any time, any where they like. If they don't want to drive, they don't need the BAIID
  7. Motorists who have had a prior DUI or DUI-based suspension within five years need not apply - they are suspended for either one year (for submitting) or three years (for refusing) and can't get any kind of permit, even one that requires they prove they have NO ALCOHOL in their system before driving. Hmm ... very fair, no?
So the lucky guy or gal who is accused of committing the crime of DUI, not an "offender", not someone who has been "convicted" as each and every one of these stories have it, but someone who might perhaps be found not guilty at all, must still spend between $600 and $1300 to drive.

Is it possible there is a reason these stories would rather not report the truth? It is somewhat less palatable to anyone who remembers we live a country governed by a Constitution and Bill of Rights, isn't it?