Illinois DUI Law

Will this be another oops? Illinois trials to be televised?

2012-01-25T22:06:00.000-06:00

From the Chicago Tribune:
Illinois trials may soon be televised

The Illinois Supreme Court is promulgating rules that will allow a more open courtroom by allowing court proceedings to be televised. While this change is meant to be positive, as with many governmental "advances", this may actually create complex problems down the road. The article notes the possibility that witnesses may feel uncomfortable coming forward, and that's a valid problem, but it's only the tip of the iceberg.

Illinois has laws allowing expungement or sealing of case information in many types of cases where defendants are found not guilty or the case is dismissed, and even in some felony matters resulting in conviction. Once a Court orders a case sealed or expunged, the information about the case is sealed or even destroyed. A potential employer, for instance, would not be able to see information about that case.

What's the point?

What about visual search? Never heard of visual search? If not, you will. It's a technology in its toddling stages, well past infancy. Go ahead and do a Google search for "Visual Search" and as of this moment, you'll find some 30,500,000 results. You plug in your image or photo and the search engine looks for related material. And facial recognition software? It's here now. Apple's iPhone and iPad? There's an app for that. Motorola's Xoom comes with facial recognition built in.

So you beat a criminal charge at trial and go through the process of expungement all with help from your local highly qualified Illinois Criminal defense attorneys, but guess what? Your trial was televised! And some soul with more time than tact uploaded a copy of the video to, where else, YouTube. So when you pop in for your job interview, your interviewer snaps a photo, uploads it to the Google of visual search (which will probably be Google) and presto chango - Illinois' expungement law is circumvented.

I can't help but wonder if this was considered by the Illinois Supreme Court? What do you think?

DUI - don't want one? Top ten things NOT to do!

2011-12-26T16:01:00.000-06:00

This holiday weekend, I found a WGN news story simply inspiring:

DUI suspect crashes car outside police station

The headline almost says it all - the car actually crashed into the wall of the police station itself.

People ask me all the time how to avoid being arrested for DUI. Other than the obvious "if you feel it at all, don't drive," really, here are a few simple rules:

Avoid crashing into police stations;
Likewise, avoid crashing into police squad cars;
When offered the portable breath test before arrest, don't attempt to drink it;
Don't think that riding a lawnmower will get you out of a DUI. It won't;
Maybe this isn't ten, but you get the point.

Seriously though, no matter how much alcohol you've had, if an officer smells it, they're in a political trick bag and may feel compelled to arrest you no matter what. There are some basic guidelines that apply to most motorists when being investigated for DUI in Illinois and they're really fairly easy to follow:

Don't answer any questions if the answer can't be found printed on your driver's license, insurance or registration;

Practice - "I respectfully refuse to answer any questions". Repeat.

Do produce those documents if requested;

If possible, it's a good plan to have those documents readily accessible so that you're not fumbling for them in a dark car at 1am while a not so happy police officer is waiting in Chicago's January frozen tundra;

If asked to exit the vehicle, advise the officer you will do so only if he or she is ordering you to exit the vehicle, and that you'll consider it an arrest;

If the officer tells you that you must exit and you refuse, you may be facing additional criminal charges as well as a visit to the hospital for TASER burns.

If requested to submit to any roadside tests, politely refuse;

Because your lawyer told you so.
This includes the eye test ("just follow my finger"), the portable breath test and any other "just do this for me" test the officer can think of on the spot.

The officer may arrest you anyway. You can and in most cases, should, refuse to submit to any chemical testing requested.

If you've had absolutely nothing to drink for 24 hours, go ahead and submit, preferably to blood testing if possible.
If you've used cannabis (marijuana, reefer, ganja, wacky weed, get it?) within 32 days, or even have been exposed to second hand smoke, refuse urine or blood testing.
If you've used any other illegal drug within the last month, refuse blood or using testing.
If you've used any LEGAL prescription, even if not within 24 hours, espescially if you've consumed ANY amount of alcohol, refuse all testing and do not volunteer that you have consumed medication - it will not make things better.
If you're under 21 or are operating a commercial vehicle or a school bus, you shouldn't be drinking, should you? These rules apply to you too!

Finally, if arrested for DUI in Chicago or throughout Cook, Lake or DuPage counties, call us for a free consultation at (847) 635-8200. We're right where we've been for over 30 years, serving clients just like you.

Drive safe , happy holidays and a happy new year from all of us at Fagan, Fagan & Davis!

No Breaking Dawn for this young lady. She's grounded.

2011-11-21T23:18:00.001-06:00

Illinois Teenager Blames DUI Crash On Not Seeing 'Twilight' Film: Police Arrest Olivia Ornelas

Thousands of dedicated fans turned out over the weekend to see "The Twilight Saga: Breaking Dawn - Part 1." But for one teenage girl, the tragedy of not making it was a lot worse than choosing between Jacob or Edward.
Police in Illinois arrested an "extremely upset" 18-year-old girl on Saturday after she told authorities that she crashed her car because her boyfriend did not take her to see the new Twilight movie.

Oh yeah. HuffPo does an Illinois DUI story right.

Chicago revenue . . . er . . . camera speeding ticket bill goes to Governor Quinn

2011-11-09T21:18:00.003-06:00

If you love your Chicago red light camera tickets, you're gonna love your Chicago speeding tickets via cameras in school zones. As of today, we're just a stroke of Governor Quinn's pen away from a mindless revenue stream of little to no proven value in improving public safety.

Here's the scoop.

DUI statistics used, incorrectly again, for the force of good?

2011-10-30T14:19:00.001-05:00

The hand of Prohibition is still being felt across the country, if this article from Pennsylvania is any indication. The author notes that "privatization" actually seems to reduce DUI fatalities. By privatization, he means allowing merchants to decide what type of alcoholic beverage to sell, and when to sell it, to the maximum extent possible. The article specifically points to DUI in Illinois as an example of lower DUI fatality rates. The author notes:

"I compared Pennsylvania's alcohol-related traffic fatalities with those of the five largest states that freely allow sales to adults of all three types of alcoholic beverage — beer, wine and spirits (the hard stuff, such as gin and whiskey) — in grocery stores."

Upon comparing those results according to the NHTSA (National Highway Traffic Safety Administration), he see that:

"In 2008, the most recent year for which I found statistics, every one of those five states had fewer fatalities per capita than Pennsylvania, which had one alcohol-related traffic fatality for each 25,604 in population. In California it was one per 36,248; Illinois, Indiana and Michigan were only slightly worse; and in Massachusetts the rate was only one in 52,419."

While I think the author is essentially correct, I'd feel . . . remiss, I suppose . . . if I didn't at least point out that he is using the same failed logical argument that leads those who (whether they consciously recognize it or not) promote prohibition, such as MADD or AAIM advocates. These advocates all miss, intentionally in some cases, a very important distinction.

The statistics and figures given by the NHTSA do not measure drunk driving fatality.

These statistics include any person involved in an accident with any measurable amount of alcohol present in their system. Thus, a rear-seat passenger with a blood-alcohol content of 0.01 (which incidentally may not indicate consumption of alcoholic beverage at all) in a vehicle driven by a completely sober driver determined to be not-at-fault would still be considered in the accident. Doubt me? Check the glossary in NHTSA's own documents here under the term "Alcohol Involvement".

The value of theses statistics is dubious. The value of drawing conclusions related to the efficacy of DUI law in Illinois or any other State of the union is almost . . . silly. Or perhaps more accurately . . . pernicious?

Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com

2011-10-23T21:36:00.000-05:00

Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com

Now if Mark Ditka is later acquitted of this Lake County DUI here in Illinois, or his case is dismissed, will abc7chicago deign to write about that? Probably not.

Troy Davis and the integrity of the legal system

2011-09-21T22:20:00.000-05:00

Readers familiar with the Troy Davis case out of Georgia might wonder what I'm doing posting about this on a DUI blog. Good question.

For one thing, I focus on criminal defense in Illinois as well. For another, one of the great problems presented by DUI investigation and prosecution is a problem of general integrity in the legal system.

Here we have just such a problem. Seven of nine key witnesses have recanted their testimony? When we, as a society, execute people, there must be no room whatsoever for doubt. Even if Troy Davis is guilty in fact, and not just in law, this is a failure of our system of justice and a blight on it's integrity.

High court refuses to block Troy Davis execution | ajc.com

Is refusing to submit to DUI breath testing in Illinois good advice?

2011-08-31T22:42:00.000-05:00

Probably one of the most common questions we get at Fagan, Fagan & Davis is "if I'm stopped for DUI in Illinois, should I take the breath test?" This is always a tough one. Part of the problem is that people don't know what to expect.

Certainly, drinking and driving is not illegal.

Go ahead, read that again and get it over with . . . you know you want to.
The legal limit is 0.08, true enough, but that's just a number - a bright line drawn almost arbitrarily. Not everyone is necessarily impaired at that level in fact, but in law, all states have passed laws to support the legal fiction that it is. So what is a person to do when confronted with the guessing game of figuring out whether they're anywhere near or over that arbitrary 0.08 number on the street in the middle of the night after being confronted by a rather . . . well, confrontational police officer?
Let's see what a State's Attorney has to say about the effect of refusing to submit to breath testing has on the ability to prosecute DuPage county DUI cases.

In a press release promising the latest "no refusal" weekend the State's Attorney notes that "refusal can make it more difficult to prosecute DUI cases."

He's quite right, of course.

However, when we advise clients not to submit to breath testing (or to submit to any performance tests either for that matter), the purpose isn't to frustrate prosecution. Given the amount of public pressure put on police and prosecutors by organizations such as MADD or AAIM, DUI is prosecuted aggressively. That starts on the street, where officers who observe even a slight odor of alcohol are highly reluctant to let anyone drive away. Motorists need to expect the police are out looking for DUI, but they do not have any obligation to assist in their collection of evidence. Polite and cooperative is quite enough, including a polite refusal to take any tests including a breath or chemical test (unless you've consumed absolutely no alcohol, have not consumed any food or beverage of any kind within about 20 minutes and are the picture of perfect health).

As for "no refusal" weekends, what to do? In our opinion, don't take the field sobriety tests, refuse to answer any questions regarding anything not contained on your driver's license, insurance or registration (which the police are entitled to see), and finally . . . make them get the warrant.

One last thing. Unless you want to risk a charge of obstruction of justice or resisting arrest, when the officer tells you to exit the vehicle, do so.

Minorities more likely to get tickets and get searched AFTER a stop

2011-07-25T08:30:00.003-05:00

I'm not typically alarmist when I see stories claiming there's discrimination and racial profiling, but this one is more careful about it than most.

Often, studies talk about who gets stopped. My problem with those studies is that they can't or don't account for neighborhood or regional composition. For instance, why would it be significant that a high percentage of Hispanic people are stopped for traffic tickets in Chicago in an area that is largely comprised of Hispanic residents? None.

Contrast this with a recent study linked below that says something quite a bit more significant about traffic ticket enforcement in Illinois. This study is about what happened after the stop, and that's where the discrimination is suggested. To be fair, the Chicago Police Department comes off fairly well. The story is worth reading, and I welcome hearing your comments.

Study: Minorities more likely to get tickets, have vehicles searched - Chicago Sun-Times

Help! Canada won't let us in!

2011-07-20T08:30:00.001-05:00

One of my least favorite calls frequently happens around 2 or 3pm. Usually it's a young newlywed bride on the verge of tears.

"We're here for our honeymoon and the Canada border people won't let us in because my husband had a supervision for DUI in Chicago four years ago! My hubby didn't even remember this! Can you do something?" [note - expletives deleted to protect my innocent readers].

Sadly, for the most part, the answer is no. You see, in Canada, DUI is a felony offense every time, and is a basis for exclusion from admission. The most I can suggest in this situation is to ask to speak to a senior agent that has the authority to override the exclusion. Planning ahead would help, and a call to the Canadian Consulate to determine eligibility for what our northerly neighbors lovingly call "rehabilitation."

According to a recent article in the National Post about DUI exclusion, it would appear that Canada's tourism folks would prefer that exclusion based on DUI cases were perhaps a bit less rigid. We're thinking somebody told them that occasionally, hunters and fishermen (fisherpeople too) sometimes drink *gasp* alcohol. We'll let you know if we hear about any movement on this.

Meanwhile, let us know what you think about Canada's policy for punishing newlywed brides for DUI arrests their husbands have already forgotten about.

Evidence disallowed by the trial Judge shown in Clemens Criminal. Result? Mistrial.

2011-07-14T13:53:00.002-05:00

In any criminal court trial, the Judge decides what evidence is admissible and what is not - they serve as a gatekeeper. Nowhere is this more important that in a criminal Jury trial. The Court in Roger Clemens' criminal perjury trial decided that certain evidence was inadmissible and would unduly prejudice the defendant, in this case, The Rocket himself.

This legal process of having the Judge serve as a gatekeeper of information is fundamental to our system of justice. The Judge is charged with preserving the integrity of the system, and most importantly, with assuring fundamental fairness. Nowhere is this more important than a case where freedom is at stake, like in a criminal trial or, you guessed it, a DUI trial.

Why after a direct order would a prosecutor attempt to introduce the prohibited evidence or exhibit? What do you think?

Traffic court vignette - The God of Large and Small

2011-07-07T23:27:00.000-05:00

I haven't posted anything in a while and thought - what a great time for a story! Enjoy!

The God of Large and Small

What does a DUI cost in Illinois anyways?

2011-03-16T21:27:00.008-05:00

Fagan, Fagan & Davis attorneys literally speak to hundreds of people charged with DUI in Illinois every year. Without fail, people ask one question: what is this crazy situation going to cost me?!

Great question. While there's no stock answer, let's take a look at what the Illinois Secretary of State has to say on the subject.

Click on the image and you can get a look at the Secretary of State's math. According to the Jessie White's office, the "average" cost of a DUI conviction in Illinois is over $16,100.

We regularly do quite a bit better than this for our clients, especially when our representation results in dismissal of the charges.

This chart anticipates hiring an attorney "uncontested plea" - meaning walk in and give up, we suppose. But whatever we might think of the Secretary's assumptions and calculations, that's one hefty price-tag!

For an independent take on the structure of anticipated attorney fees for DUI, check out this take on DUIAttorney.com.

A change is in the wind . . . er, breath.

2011-02-15T18:15:00.007-06:00

Illinois law regarding permits for those suspended based on an accusation of DUI has undergone it's first overhaul since inception in 2009. Illinois Governor Pat Quinn today signed Public Act 96-1526 into law.

Until now, a motorist facing DUI charges in Illinois courts was able to apply to the Court for an MDDP, or Monitoring Device Driving Permit. This MDDP enables motorists suspended for either 6 months (if they submitted to chemical testing such as a breath test) or 12 months (if they refused breath, blood or urine testing) to drive for all but the first month with one significant restriction - that of a BAIID installed in their vehicle. BAIID is alphabet soup for a Breath Alcohol Ignition Interlock Device, and the idea is that the motorist provide a breath sample by blowing into the BAIID, which, assuming no significant amount of alcohol is detected, would allow the vehicle to start.

Illinois law specifies (as it has for over decades in a comparable scheme previously employed called a JDP) that only first offenders as defined by suspension law qualify for the permit. Based on that statute, as well as case law addressing the issue clearly, for purposes of DUI-based suspensions of the sort we're talking about here, a first offender basically means someone who has not had a DUI within the previous 5 years.

The problem was simple - a small group of Judges did not want the responsibility of being the gatekeepers issuing these DUI permits for those motorists who had any kind of DUI history, no matter when, no matter what the law said. If a motorist ever had a DUI, they refused to agree that the application was accepted. Some went further and refused to issue the MDDP for certain types of cases, higher breath tests for example. Never mind that the BAIID would prevent those motorists from driving with any significant amount of alcohol at all, they simply didn't want their names on those MDDP permit applications anywhere.

The solution required by these very few Judges was PA 96-1526. This law eliminates the Judge from the screening process, and requires the motorist to deal with the Secretary of State directly. There is an argument that having one more gatekeeper in the process was a desirable thing, so whether this is a good idea for Illinois DUI law remains to be seen.

It should be noted that these restrictions on a person's freedoms occur without any determination of guilt whatsoever. Before doing anything, anyone merely accused of committing the offense of DUI in Illinois should consult an experienced Illinois DUI lawyer, and that includes consulting an attorney before applying for an MDDP and addressing a summary suspension.

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

2010-11-11T18:58:00.007-06:00

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

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

2010-11-04T19:28:00.005-05:00

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!

Los Angeles County California population as of 2007: 9,807,870

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.

Illinois DUI fatalities decline . . . steadily since 2002.

2010-08-24T22:41:00.006-05:00

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?

Can you get sentenced to life in prison for a DUI? Guess so.

2010-08-14T22:50:00.004-05:00

Prosecutor says the punishment of life in prison is justified because he was a repeat offender.

If DUI is being punished as severely as murder, something is wrong.

http://abcnews.go.com/US/texas-man-life-sentence-ninth-dwi/story?id=11395058

Sentence in Illinois DUI crash killing man's best friends

2010-07-30T17:52:00.003-05:00

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

AAIM's misguided recognition

2010-07-29T14:02:00.001-05:00

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?

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

2010-07-28T21:37:00.005-05:00

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.

How long before Illinois takes DNA from those merely accused of DUI?

2010-06-22T14:08:00.003-05:00

Given the following story from New York, how long will it take before Illinois DUI law "catches up" and requires DNA samples for those merely accused of offenses such as DUI?

http://apnews.myway.com/article/20100622/D9GGB2U00.html

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

2010-06-08T15:06:00.003-05:00

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!

http://www.state.il.us/court/Opinions/AppellateCourt/2010/2ndDistrict/June/2080098.pdf

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

2010-05-27T16:55:00.000-05:00

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.

Illinois traffic arrest leads to a fatal DUI

2010-05-11T18:55:00.003-05:00

Child killed in Steger crash after police stop - chicagotribune.com

Posted using ShareThis

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

2010-04-27T16:37:00.000-05:00

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.

Interview with Illinois DUI Lawyer Steven Fagan

2010-04-21T13:51:00.000-05:00

Interview with DUI Lawyer Steven Fagan on the subject of the Chicago DUI arrest of Garritt Cullerton for DUI, son of Illinois Senator John Cullerton.

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

2010-03-23T12:43:00.003-05:00

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.

Weakening the 4th amendment . . .

2010-02-14T14:01:00.005-06:00

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.

The basics of Illinois DUI Suspension law

2010-01-26T17:02:00.005-06:00

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.

Drinking alcohol without getting drunk?

2010-01-10T10:32:00.002-06:00

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?

6 months jail for yawning in an Illinois criminal courtroom

2009-08-13T16:05:00.005-05:00

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 -- chicagotribune.com

Posted using ShareThis

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

2009-07-03T13:26:00.005-05:00

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.

Oooooh.

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.

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

2009-06-18T18:11:00.003-05:00

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.

Search and Siezure - Landmark case from SCOTUS

2009-04-22T15:54:00.006-05:00

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?

Get ready for the DUI Arrest Tweet

2009-04-21T20:30:00.004-05:00

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?

Arrest does not equal guilt

2009-04-13T17:33:00.004-05:00

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.

DUI? You're fired!

2009-04-07T17:22:00.005-05:00

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 http://www.888DUIStop.com

ASA O'Reilly gets it!

2009-03-19T13:46:00.003-05:00

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 . . .

Bad Boyz of Chicago - Chicago PD DUI Hat Trick

2009-02-26T23:10:00.007-06:00

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.

Illinois DUI law reporting - Wrong, Wrong, Wrong!

2009-01-06T20:52:00.007-06:00

"New DUI Law Requires Offenders to get Breath-Test Devices" - Rockford Register Star
Illinois' new DUI law "requires breathalyzer–type gadgets in cars for anyone convicted of Driving Under the Influence even once" - MSNBC.com
In Illinois "First time offenders are required to blow into a interlock device" - WIFR.com
Illinois DUI law requiring installation of a BAIID "is aimed at first-time offenders convicted of driving under the influence" - Chicago Tribune

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:

A motorist is arrested for DUI
The arresting officer requests that motorist, now accused of DUI, to submit to a breath, urine or blood test
The motorist either refuses to do so, or submits to testing
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
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
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
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?

DUI Loser?

2008-12-23T14:05:00.004-06:00

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!

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

2008-11-27T21:16:00.003-06:00

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.

It is not illegal to "drink and drive" period. It is illegal to drink to the point of impairment and drive.
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.
Many of those 45,000 had one Illinois DUI, a single misjudgement, maybe many years past.
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.
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.
The Secretary of State estimates the average cost of a DUI conviction at $15,000.00. Sound like latitude?
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.

Attorneys facing DUI in Illinois

2008-11-18T13:35:00.003-06:00

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.

One Field Sobriety Test Making a Comeback in Illinois DUI Courts

2008-11-12T21:42:00.005-06:00

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.

DUI or Diabetes?

2008-09-18T16:56:00.003-05:00

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.

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

2008-09-12T10:03:00.000-05:00

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.

Introduction

2008-09-03T21:18:00.001-05:00

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.