The Grayslake Illinois police Chief was charged with drunk driving after a Wisconsin crash Friday. In a wise move that will be no surprise to anyone knowledgable about DUI law and enforcement, the Chief refused to submit to any field sobriety testing, refused medical treatment (which potentially includes blood and urine testing) and refused an evidentiary or forensic blood testing.
Why do this?
Naturally, people tend to think the police live by their famous motto of "To Protect and Serve," and that's certainly usually part of the mix. That said, in the matter of DUI, it's a bit more like "To Investigate and Arrest".
The tests aren't really a chance to prove you're not under the influence of alcohol. They're really to help support the officer's decision to arrest. And by the time you're doing the tests, most officers have already made that decision.
How do I know this? Let's take a short trip down Logic Lane.
One field sobriety test is the Heel-Toe or Walk-and-Turn test. "Failure" of this test occurs when any two "clues" are observed. Clues include things like leaving more than a one inch gap between feet, raising arms at any time more than 6" away from the body, stepping off an imaginary line. There are a total of 18 steps in either direction. So if on one out of eighteen steps, you leave a two inch gap between steps and also raise your arms 6.5" (in the officer's eagle-eyed estimation) you've failed, despite walking the other 17 steps just fine. In any school in the world, 17/18 is an "A", but not here.
Now you can begin to understand why the Chief, who of course knows all of this, refused testing.
Showing posts with label no refusal. Show all posts
Showing posts with label no refusal. Show all posts
Wednesday, April 4, 2012
Wednesday, August 31, 2011
Is refusing to submit to DUI breath testing in Illinois good advice?
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.
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.
Wednesday, July 28, 2010
Hmm. . . 12 "no-refusal" Illinois DUI arrests in a weekend. Countywide. Meh.
So Kane county holds an Illinois DUI "no-refusal" weekend. They set up with just bunches of officers on duty, and a Judge just waiting for the phone to ring so that Judge can say, "why, of course a warrant is available". The powers that be set this up over July 4th weekend, too, just for good measure. They ought to net a lot of arrests right? After all, the roads are just teeming with drunks that are begging to be arrested.
Maybe not. Eleven participating Illinois law enforcement agencies got a whole 12 DUI arrests out of this. That's right, 12. For the whole county. For the whole weekend.
Really? Here's the question - how many DUI arrests does Kane county, Illinois net on a regular weekend, and was this an effective use of government resource to enforce Illinois DUI laws on our roads. I doubt it, but I'd love to hear the Sun-Times and other news stories do more than just repeat the State's Attorney's PR hype on the subject, and ask some useful questions. Let's hope that until that question is answered, there's some more thought put into this.
Friday, July 3, 2009
This July 4th we celebrate our freedom - except for those who drink and drive?
July 4th. A day we spend remembering the greatness that is the United States of America and join together in gratitude for our freedoms!
Except if you had the audacity to have a beer before heading home from the fireworks.
Yes, this weekend, Kane county will "host" another one of its "No Refusal Weekends" and coerce people into giving breath samples and blood samples at the whim of an officer. You see, when arrested for an Illinois DUI, it is implied that you "consent" to submit to such testing unless you withdraw that consent. Why might you withdraw that consent? Well, maybe you feel the officer hasn't been totally fair up to that point with his silly acrobatic tests designed to make you fail. Maybe you don't trust these chemical tests in these contraptions because you know they aren't to be trusted. Or maybe you just feel like you have a Constitutional right to shut up (you do).
However, this weekend in Kane county, if you withdraw your consent to testing, the officer will threaten you. Not just with the standard stuff about a longer license suspension (in many cases just a minor inconvenience now, but that's for another time), but with . . . a warrant.
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.
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.
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