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.
Sunday, October 23, 2011
Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com
Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com
Wednesday, September 21, 2011
Troy Davis and the integrity of the legal system
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
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
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.
Monday, July 25, 2011
Minorities more likely to get tickets and get searched AFTER a stop
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
Wednesday, July 20, 2011
Help! Canada won't let us in!
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.
"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.
Thursday, July 14, 2011
Evidence disallowed by the trial Judge shown in Clemens Criminal. Result? Mistrial.
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?
Thursday, July 7, 2011
Traffic court vignette - The God of Large and Small
I haven't posted anything in a while and thought - what a great time for a story! Enjoy!
The God of Large and Small
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