Thursday, November 11, 2010

Considering whether YOU should take that DUI breath test . . .

Apparently - NO!

Breath Alcohol Technician Ticketed For Possible DUI

A man who makes his living calibrating the breath alcohol analyzers for the state police was ticketed Thursday evening, Aug. 26, under the suspicion of driving under the influence. Clyde Mathews of Waterloo, a breath alcohol technician with the Illinois State Police, was cited for DUI Thursday night after he ran into a parked car on Waterloo Drive. Just before 10 p.m., Mathews, 68, was driving a 2004 Lincoln LS north on Waterloo Drive when he collided with Carolyn Sabo’s 2004 Nissan Altima, which was parked in front of her house. The collision moved Sabo’s car several feet and caused damage to the bumper and taillight. Mathews was not injured in the accident. Mathews is a former Waterloo alderman and police officer.

From the Monroe County Independent

Thursday, November 4, 2010

Fun Facts: DUI - All of Illinois vs Los Angeles County

Sometimes with DUI, it's interesting to take a step back and look at the big picture. Yes, sometimes it looks like a bunch of meaningless numbers collected by government agencies, but what the heck?

Los Angeles County California, if nothing else, is a cultural and socioeconomic microcosm . . . ok, it's a freakshow fun to follow, and they have great weather, and I'm envious because in Chicago where I live and practice DUI law, if you don't like the weather, wait five minutes. And they have Smokin', which, if you've never been . . . I feel sorry for you. Mmmm. . .

But I digress. Here's the point, check out these stats and let me know what you think!

LA County DUI arrests in 2007: 42,736
Illinois population as of 2008: 12,901,563
Illinois DUI arrests in 2008: 48,113

What's so interesting about that other than that LA County has a lot of freaking bodies packed into a very tight space? Why the percentages, of course!

According to this, there are 4.36 arrests for every 100 actors-working-as-waiters living in LA county! Contrast this with the 3.73 arrests per 100 actually-living voters, alderman and precinct bosses living in Illinois (not just Chicago), and maybe Illinois hasn't earned quite the level of hysteria regarding DUI that our more glamorous western friends experience on an hourly basis. Maybe.


Tuesday, August 24, 2010

Illinois DUI fatalities decline . . . steadily since 2002.

According to a press release today by the Illinois Government News Network, "The Illinois Department of Transportation (IDOT), Division of Traffic Safety today released data showing a lower number of alcohol-involved, motor vehicle fatalities in Illinois. The reduction in alcohol-involved fatalities has occurred steadily since 2002 with the largest decline occurring between 2007 and 2008."

Additionally, "According to data from IDOT and the National Highway Traffic Safety Administration (NHTSA), the number of motor vehicle fatalities involving a drinking driver declined modestly but steadily from 2002 through 2008, culminating with a 16-percent decrease between 2007 and 2008. The number of fatalities involving a legally impaired driver (0.08 BAC and above) also declined from 2002 through 2008, and the total number of fatalities decreased by 77 between 2007 and 2008, a reduction of about 18 percent.

Another encouraging sign of improvement is the reduction in the Illinois’ alcohol-related fatality rate, the ratio of alcohol-involved fatalities to total annual vehicle miles traveled (VMT) in Illinois. This rate has been above 0.50 for several years in Illinois, but fell to 0.48 in 2007 and to a low of 0.41 in 2008."

So read that bit again. The number of fatalities involving motorists legally impaired (including those not caused by the impaired motorist) has steadily declined since 2002. Meanwhile, the last 3 years has seen increasingly tougher laws and penalties related to DUI. If decline has been steady between 2002 and the start of this toughening of laws, one has to ask . . . why change laws that worked?

Saturday, August 14, 2010

Friday, July 30, 2010

Sentence in Illinois DUI crash killing man's best friends

Closing out a sad tale involving a traffic accident that resulted in the death of his two best friends, Thomas G. Ofenloch pled guilty to committing Aggravated DUI in Illinois in a Kane county courtroom. He was sentenced to 10 years in prison by the Judge taking his plea. An expert witness in accident reconstruction testified that Ofenloch's vehicle had been traveling at speeds exceeding 100 mph at the time of the accident. Ofenloch, who was also injured in the traffic accident, had spoken over a dozen times to others either guilty of or accused of committing a DUI in Chicago and surrounding areas, and had served over 900 days on electronic home monitoring. The Court declined to credit this time to Ofenloch's sentence. His reported blood alcohol content was over the Illinois legal alcohol limit of 0.08.

Man gets 10 years in DUI crash that killed two best friends :: CHICAGO SUN-TIMES :: Metro & Tri-State

Thursday, July 29, 2010

AAIM's misguided recognition

Points to anyone who sees what's wrong with this.

"Congratulations are in order for Cary Police officers Geoffrey Witherow, Ryan Sherman, Tricia Malone and Kathy Eiring, who made a combined 38 DUI arrests in 2009. In May, the Alliance Against Intoxicated Motorists recognized the four for their work. Witherow made the most DUI arrests out of the group with 25. Sherman and Malone had seven DUI arrests, with Eiring posting six arrests. Statistics show there were 70 total DUI arrests in Cary last year. Cary Acting Chief Ed Fetzer recommended that AAIM honor the four officers responsible for more than 50 percent of them. "Anytime an arrest has been made, we feel a life has been saved," said Anita Huvaere, the AAIM staffer who compiled the statistics for Illinois towns. "That's why we recognized the officers."" Daily Herald.

Every year, AAIM honors officers based on the number of arrests for DUI in Illinois.  All this does is promote arrests.  I'd be more interested in seeing how many of these arrests resulted in findings of guilty.  To suggest that lives were saved because someone was arrested is making some enormous assumptions that may (or may not) be warranted, given the extremely low rate of fatalities as measured against the wildly speculative numbers thrown around by organizations like AAIM of Illinois motorists committing DUI on an annual basis.  AAIM and MADD are constantly crying about how many DUIs are undetected.  If they're right, and if they're consistent, where's the bloodbath? 

Wednesday, July 28, 2010

Hmm. . . 12 "no-refusal" Illinois DUI arrests in a weekend. Countywide. Meh.


So Kane county holds an Illinois DUI "no-refusal" weekend. They set up with just bunches of officers on duty, and a Judge just waiting for the phone to ring so that Judge can say, "why, of course a warrant is available". The powers that be set this up over July 4th weekend, too, just for good measure. They ought to net a lot of arrests right? After all, the roads are just teeming with drunks that are begging to be arrested.
Maybe not. Eleven participating Illinois law enforcement agencies got a whole 12 DUI arrests out of this. That's right, 12. For the whole county. For the whole weekend.



Really? Here's the question - how many DUI arrests does Kane county, Illinois net on a regular weekend, and was this an effective use of government resource to enforce Illinois DUI laws on our roads. I doubt it, but I'd love to hear the Sun-Times and other news stories do more than just repeat the State's Attorney's PR hype on the subject, and ask some useful questions. Let's hope that until that question is answered, there's some more thought put into this.

Tuesday, June 22, 2010

Tuesday, June 8, 2010

Did you think the Police have to follow rules? Come on! It's a DUI - they can just almost comply

Just step right up and take that breath test. Procedures? What procedures? We don't need no stinking procedures!
That's right ladies and gentlemen, In Illinois DUI arrests, the State can not only require that you be "tested" to see if you have violated DUI law after you are already under arrest, not only can they ignore the scientifically accepted standard of replicate testing, but according to this recent gem of a case, "substantial compliance" (that means just about sort of maybe compliance) is just fine. Way to go!

Thursday, May 27, 2010

Illinois DUI law and Obama Drug Policy: Smoke Pot Months Ago, Get a DUI

Here's an interesting article on DUI based on marijuana:
Opposing Views: Obama Drug Policy: Smoke Pot Months Ago, Get a DUI

In Illinois, even the presence of a metabolite of marijuana in the blood or urine of a motorist is a criminal offense. A metabolite is an inert substance (meaning a substance that has no effect) that is left over in the blood or urine even after the active substance which might cause impairment is no longer present. This is an absurdity in Illinois DUI law which means that even if a driver smoked marijuana a day earlier and is not currently impaired or affected in any way while driving, he or she will still be found guilty of committing the offense of DUI.

Such a law may have made sense decades ago when more specific methods of testing for the presence of intoxicating substances like marijuana were not readily available, but nowadays, this law makes the "stupid" pile.

Tuesday, April 27, 2010

Judge throws out DUI evidence against Chicago cop in fatal crash :: CHICAGO SUN-TIMES :: Metro & Tri-State

Every day, seasoned criminal and DUI defense lawyers in Illinois rail against weak investigations that result in DUI arrests. In particular, Chicago police officers are poorly trained for DUI enforcement, minimally document their investigations (most DUI reports written by Chicago Police officers contain only a single paragraph or two recording the entirety of their observations), and are rarely held to a high standard. This creates a two-edged sword, which can clearly be seen in recent decision of a Cook County, Illinois Judge which will result in dismissal of DUI and Reckless homicide charges against Chicago police officer John Ardelean.

Judge throws out DUI evidence against Chicago cop in fatal crash :: CHICAGO SUN-TIMES :: Metro & Tri-State

Two young men were killed in a crash involving Mr. Ardelean, and the anguish of the parents of these boys could have been averted. If officers had investigated with proper procedure, careful testing according to standardized and established practices, they could have either eliminated the suspicion that Mr. Ardelean was under the influence of alcohol then and there, or have built a well-founded case for DUI against him that would withstand the careful scrutiny of the Judge.

The blame for this case falling apart does not lie at the feet of the Judge. Judge Gainer simply did his job, examined the facts presented and weighed those facts in light of legal standards that form the backbone of our system of criminal justice. The blame does not fall at the feet of Mr. Ardelean's defense attorney, who again, simply raised and pursued a valid challenge that any carefully investigated matter ought to withstand if cool professionalism rules the minds and hearts of those who enforce our laws.

The blame clearly falls on the administration of the Chicago police, who despite repeated challenges in Court hearings, still have not installed video recording equipment in vehicles of officers assigned to DUI enforcement. Officers still regularly testify that they don't know about, or even have never heard of, the NHSTA's training manual on DUI Detection and Enforcement, despite the fact that it is part of the training all police officers receive for training in DUI enforcement. Chicago DUI officers still write one or two paragraph reports, as opposed to their suburban counterparts, who typically fill out multiple typewritten pages. This is a drag on our system resulting in bad arrests and resulting in dismissals of weak cases that could have been handled better.

The CPD could be far better, but it remains to be seen if the Chicago police department will react to this very public dismissal with a determination to raise their standards.

Wednesday, April 21, 2010

Tuesday, March 23, 2010

Not enough DUI defendants paying for a BAIID? There's a fix for that . . .

Apparently, far, far fewer defendants than expected opted in to a special permit to drive called an MDDP. Those accused of DUI in Illinois for the first time within the preceding five years have the option to apply for an MDDP or "Monitoring Device Driving Permit" and install a BAIID or "Breath Alcohol Ignition Interlock Device" in their car. The cost of doing so is often prohibitive.

Nevertheless, legislators and BAIID providers were looking for about 40,000 motorists to participate state-wide last year. They got about 6500, and they are not happy.

Some of the problem comes from a strange holdover provision from previous legislation that appeared to serve no purpose other than to add a layer of bureaucracy. The application process as it now stands requires a Judge to approve a DUI defendant's application for an MDDP. This is typically done by asking the exact same questions the motorist would fill out on their application. And the same information the Secretary of State has already at their fingertips. In response to this waste of time and resources, some Judges have far overstepped their admittedly custodial function in this process and actually taken to denying MDDP applications under circumstances the law would otherwise allow. The law as written does not grant the Court any such discretion.

Another issue standing in the way of more MDDP issuance is the fact that those Defendants represented by the office of the Public Defender are not getting a fair shake. The law defining the role of the Public Defender actually prohibits these lawyers from advising their clients on matters relating to their suspension or from representing their clients in regards to any matter regarding their suspension before the Court. Essentially, the Public Defender must stand there and not help their client. Not surprisingly, many indigent defendants who might otherwise request an MDDP don't even really understand the option.

A recent bill introduced in the State Senate, SB3775, seeks to address these impediments by trimming the added layer of the Court and streamlining the process. The idea is that once the Secretary of State confirms a suspension will begin, they'll send the MDDP application along to the motorist, who can then fill out and return the application directly to the Secretary of State.

Sounds great, right?

Apparently not to BAIID manufacturers. They've come to Springfield with their own ideas, proposing that motorists who opt out of the MDDP program pay a higher reinstatement fee than those who opt in. Illinois' legislators should be bright enough to see this strongarm tactic for what it is, and also that such a change to the law would not withstand scrutiny in light of the Equal Protection clause of the Constitution.

Sunday, February 14, 2010

Weakening the 4th amendment . . .

If the Obama administration gets its way, federal law enforcement and local police agencies will be able to dig into cell phone location data and find YOU without a warrant any old time they please. The 4th amendment protects against unreasonable search and seizure by the government, and two important questions raised are:
  • is there a valid expectation of privacy at all in such information;
  • if so, is this an unreasonable search?

What does this have to do with DUI in Illinois? 4th amendment issues are regularly tested in DUI arrest situations. You see, almost all DUI arrests involve investigations that are immediate in nature, and happen without any warrant. Getting a warrant slows things down and requires that a judge hear why an investigation needs to go further - the judge determines whether "probable cause" exists to allow a search. This makes on-site investigation difficult, but provides strong protection to rights of the person being investigated. The police would rather not wait, and so, most investigations proceed without warrant. A warrantless search is presumed to violate 4th amendment protection, unless probable cause can be demonstrated.

The practical result is that police typically investigate with an eye towards establishing probable cause (as opposed to investigating with an eye towards exoneration). They'd rather arrest now and ask questions later than slow down and ask careful questions.

Add to this the fact that government is always seeking to expand their ability to "get around" the restrictions of the 4th amendment, and you have your connection between DUI and the Justice Department's desire to track anyone they please by cell-phone without a warrant.

Everything is connected, and the possibility for abuse of power increases every time the power to invade the rights of the individual are pushed further down the chain of command. Let's hope the Courts push back.

Tuesday, January 26, 2010

The basics of Illinois DUI Suspension law

Among the most common questions I get have to do with confusion about a very important part of DUI law in Illinois, so I'll post an explanation here to try to explain (briefly) how DUI license suspension works in Illinois. While this information is consistent whether you face a Chicago DUI arrest, DUI in Lake county or elsewhere, nothing can replace an explanation by your lawyer in the context of your case, but I hope this helps.


DUI charges in Illinois usually involves a component called a statutory summary suspension. Statutory summary suspension means that the Secretary of State of Illinois, by law, is required to suspend the license of a motorist arrested for DUI in Illinois. This happens if the offense took place on a public roadway within Illinois and the officer properly filled out and served the motorist with a copy of a “Notice of Statutory Summary Suspension”. The length of a suspension is determined primarily by the actions of the motorist, now under arrest for DUI.


After arrest, the officer will request any number of chemical tests, including a breath, urine or blood test. If the motorist submits to the tests requested by the officer and that test shows either an alcohol level at or above a 0.08, or the presence of any illegal substance, the length of the suspension will then be determined by the motorist’s history at the Secretary of State. The motorist will either be suspended for six months or one year, depending on their prior record.


If any test requested by the officer is refused, the length of license suspension is again determined the same way, but this time, as either a one year suspension or a three year suspension. For example, if the officer requests urine and blood tests and the motorist refuses urine but submits to blood (or the other way around), the officer will mark the Notice of Statutory Summary Suspension as a “refusal” to submit, and the Secretary of State of Illinois will be required by law to enter a suspension for either one or three years accordingly.


It is important to note that if the greater term of suspension (one year or three) applies in either a refusal or submission, no hardship permit is available. This longer term of suspension for either refusal or submission is dependent on a determination by the Secretary of State of Illinois as to whether the motorist arrested for DUI has, within the previous five years, either been suspended as a result of a DUI arrest or been arrested and found guilty of a DUI.


It is important to remember that the suspension is administrative, and although it can be challenged in the same Court where the DUI criminal charges will be heard, it is a completely separate case. In fact, under Illinois law, Statutory Summary Suspension hearings are civil, as opposed to Illinois DUI charges, which are criminal in nature.

Sunday, January 10, 2010

Drinking alcohol without getting drunk?

In DUI courtrooms around the country, and certainly here in the Chicago area, police officers regularly testify that they "smelled the odor of an alcoholic beverage coming from the suspect's breath". This almost always leads to a DUI arrest in Illinois and elsewhere. Great defense attorneys know well how to deal with such insignificant "evidence" and do so effectively.

But what happens when the "odor of an alcoholic beverage" doesn't mean the odor of an intoxicating substance? What if there's a product that has that odor, the taste, the feel - but not the effect?

It seems that question may come along soon. A drug researcher in jolly old England is looking into the possibility of dealing with the effect of alcohol that gives rise to DUI - impairment.

It seems officers in the future may need to think more about how heavily they rely on odor (they should already do so). What are your thoughts on the topic?