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

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

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

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

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

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

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

Interview with Illinois DUI Lawyer Steven Fagan

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 . . .

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 . . .

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

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?

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

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

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