Give us your tired, your poor, your undocumented and we will license them!

Illegal aliens, or undocumented immigrants if you prefer, have long had a problem. Forget the debate for the moment about whether their very existence within a particular space on the map is a violation of the law - that's not what this blog is about. "They" (and for convenience, not for any other reason, that's how I'll be referring to illegal aliens or undocumented immigr. . . oh, you get it now, don't you) have been otherwise unable to comply with a great many laws.

And far more importantly to everyone else around them, holding them accountable to our laws has also been nigh unto impossible.

What do I mean?

Hold that thought a moment. For now, we must mention some very big news here in Illinois. Trust me, it all fits in. Illinois has just passed a law that goes into effect later in 2013 which will provide the opportunity for undocumented or illegal immigrants to obtain valid driving privileges in Illinois. This is going to have a significant effect, in some very interesting ways. Regarding Illinois DUI law, an arrest for DUI while unlicensed is a felony. Not because the driver did something particularly nefarious or had greater criminal intent (no one seems to care about intent when it comes to DUI, do they?) but simply because the driver, for whatever reason, does not have the State's imprimatur via a piece of plastic saying they can drive. Whether a person just never bothered to get a license (yes, we've seen that over here in our law office, recently in fact) or because they were legally unable to obtain a license, it is a crime to drive without a driver's license.

Now there are different reasons one might not be able to obtain a license. If your name is Dick Whitman, but you're posing as Don Draper, that might've worked in 1962, but nowadays, that's a tough sell. Maybe your license was taken away for a good reason by the State. Or, maybe there just was no way you could legally get one.

Rather than seeking out friends of a certain former Governor and Secretary of State of Illinois for help, you can now direct undocumented friends and family to an actual, honest to goodness legal way to get a license.

And it's good for all of us I say, no matter your political persuasion, that we'll have these "Temporary Visitor's Licenses".

Here's why:

• A valid driver's license creates a vested interest in keeping that license valid. Think about this - aside from safety, what stops you from speeding? You want to keep that license, right? Yes you do, and so will "they".
• Getting a valid driver's license is going to require familiarity with the rules of the road, just like every other licensed driver. 
• Vision tests. That's right, you can be undocumented or illegal. Just not blind, okay?
• Included in those rules of the road is a requirement that we all maintain valid liability insurance.
• Valid liability insurance means if we get into an accident, those we get into an accident with are not left on the roadside with empty hands (I really wanted to get more colorful there, but my kids might read this blog, you know?).
• A valid driver's license has an address and identifying information on it, and this kind will be electronically tied to facial recognition software to prevent fraud. Know what that means? Accountability - "they" can be sued and more importantly, served. And if necessary, more easily tracked down by police if laws are violated.
• Insurance companies are going to be very happy about those premiums, aren't they?
• Greater accountability can only lead to one of those things we all want in our society in general - more stability and greater responsibility.
• These silly (yes, silly I say) enhancements of DUI offenses to felony status simply because someone finds themselves in an impossible situation ends.

Does it feel sort of like rewarding bad judgement or poor behavior or simply a sop to a sad story? Yes. It does a bit. That said, there's a lot to like about this one, espescially if we want a way to make "them" just as accountable to the law and to their neighbors as all the rest of "us".

And then "they" are actually in many important ways,  a great deal more "us", aren't they?

Yes, driving is a privilege. But a driver's license is a government document which creates a government record. It's an albatross around all our necks - a yoke we all willingly wear for the benefit of our community.

I welcome your comments.

Worried that people getting arrested for DUI just won't learn their lesson? Don't.

According to the Illinois Secretary of State 2012 DUI FactBook, 85% of all people arrested for DUI in Illinois in 2010 were first-time offenders. Also according to the report, 3,440 motorists resulted in revocations after their second offense, 866 for their third, and 436 for their fourth or later (a revocation only occurs after a conviction, and does so automatically). The overall number of DUI arrests has decreased annually from 2008 through 2010 as well.

Unless police simply aren't arresting as many people for some reason, it would appear that Illinois' efforts at preventing recidivism, or the tendency to re-offend, are largely effective.

In Illinois, motorists charged with DUI for the first time are generally eligible for a special one-time chance to dispose of their case via a sentence of Court Supervision. After a finding of guilty, whether after trial or plea of guilty, a defendant can avoid a conviction and jail as long as they comply with certain conditions. This is no free ride - there are significant fines, alcohol education classes and treatment are required, and a criminal record remains forever.  The Court also requires a VIP or victim impact panel run by MADD, and can require significant community service, random alcohol testing and other conditions.

Consistent with the Secretary of State's previous reports on the issues I've written about, the cost of a DUI remains extremely high, and the Secretary of State still pegs the estimated cost of a first DUI at over $16,000.

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?

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.

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

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

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

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.

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?

DUI Loser?

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 . . .

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.  

1. It is not illegal to "drink and drive" period.  It is illegal to drink to the point of impairment and drive. 
   
2. 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.
3. Many of those 45,000 had one Illinois DUI, a single misjudgement, maybe many years past.  
4. 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.  
5. 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.  
6. The Secretary of State estimates the average cost of a DUI conviction at $15,000.00. Sound like latitude?
7. 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.