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

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.

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!

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

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

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

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

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

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

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.

Illinois DUI law reporting - Wrong, Wrong, Wrong!

• "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:

1. A motorist is arrested for DUI
2. The arresting officer requests that motorist, now accused of DUI, to submit to a breath, urine or blood test
3. The motorist either refuses to do so, or submits to testing
4. If the motorist either refuses or submits to tests demonstrating either a 0.08 or above blood or breath alcohol content or the presence of a substance such as marijuana (for example), the arresting officer serves a notice of suspension on the motorist
5. 46 days later, the motorist's privilege to drive in the state of Illinois is suspended, either for 6 months (for submitting) or for one year (for refusal) assuming they have had no prior DUI or DUI-based suspension within five years
6. 30 days after that happens, if the motorist chooses to be able to drive, they may obtain what is called an MDDP or "Monitored Device Driving Permit", install a BAIID on their vehicle, and drive any time, any where they like. If they don't want to drive, they don't need the BAIID
7. Motorists who have had a prior DUI or DUI-based suspension within five years need not apply - they are suspended for either one year (for submitting) or three years (for refusing) and can't get any kind of permit, even one that requires they prove they have NO ALCOHOL in their system before driving. Hmm ... very fair, no?

So the lucky guy or gal who is accused of committing the crime of DUI, not an "offender", not someone who has been "convicted" as each and every one of these stories have it, but someone who might perhaps be found not guilty at all, must still spend between $600 and $1300 to drive.

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