ASA O'Reilly gets it!

Kudos to Cook County ASA Lawrence X. O'Reilly. Really. It isn't often you'll see something like that here, but I'm sincere.

A recent Chicago Sun-Times article reports that ASA O'Reilly, supervisor of Chicago's Cook County Traffic Division is calling on the feckless and beleaguered Chicago Police Department to make sure those police officers who focus on DUI enforcement be assigned squad cars equipped with video cameras.

Mr. O'Reilly notes that video equipment will benefit police officers and help protect the rights of those they encounter.

Too true.

As any seasoned Illinois DUI attorney will tell you, many a video has dramatically affected the course of a DUI prosecution. I've reviewed over a thousand arrest videos. Some outright contradicted the officer's written reports, while others merely raised questions. Quite a few strongly supported the officer's version of the events. In those cases, my clients appreciated the clarity of a look back in time.

Not long ago, a very experienced police officer from a large town in suburban Cook county discussed his video experience with me, angry that his municipality had decided to pull the video machines from squad cars (they were losing too many cases because of a few bad eggs, and this was their solution).

Officer C, as we'll call him, recalls a perfectly average DUI arrest. Nice, clean-cut middle-aged lady. Well dressed and well mannered. No trouble or guff at all ending in a moderate 0.13 breath result. That all changed when she returned to the police station two hours after her release to complain that officer C had called her horrible names, verbally abused her and slammed her face-first onto the hood of his car. Ouch.

Maybe she just forgot that he mentioned the video. Hmm? Officer C's commanding officer reviewed the video right then and there and told the woman where to go.

The point of course, is that transparency in law enforcement is a good thing, but more on that later . . .

Bad Boyz of Chicago - Chicago PD DUI Hat Trick

First, Chicago police officer John Haleas was found to be fabricating DUI cases last April (and currently faces related felony criminal charges), then earlier this week the Chicago Sun-Times reported that Chicago police officer Joe Parker stands accused of doing much the same. And today the Chicago police face yet another black eye - Chicago police officer Richard Fiorito faces a federal lawsuit alleging he, too is ready to make up a DUI case from thin air.

To be sure, this is not a good week for the CPD, and Cook County States Attorney Anita Alvarez cannot be very pleased to have to deal with this in her first months in office.

Probably more miserable tonight is embattled Superintendant of Chicago Police Jody Weis, who just a few days ago, refused to comply with an order by U.S. Magistrate Maria Valdez requiring the Department turn over information about officers with multiple complaints. Talk about bad timing!

Inexplicably, Weis, who is sworn to uphold the Consitution, and to protect the public, argued that turning over the information would “compromise officers’ performance, threaten safety, reduce morale and improperly impugn many officers’ otherwise well-deserved good reputations.”

Superintendant Weis - given the accusations against officers Haleas, Parker and Fiorito, don't you think that not turning over the information does more to "threaten" public safety? Shouldn't you be concerned that the actions of these officers "reduce morale" of their fellow officers? Isn't it time for you to act to protect the public from official misdconduct? Doesn't the act of sheltering officers repeatedly accused of misconduct "impugn many officers' otherwise well-deserved good reputations?"

DUI is punishable in Illnois by up to 364 days in jail and up to $2500 in fines plus costs. Defendants stand to lose their licenses, thousands of dollars, their freedom, their reputations, and in some cases their jobs. Stop playing hide the ball - Chicago police officers need to know their credibility and professionalism is fundamental to the performance of their duties and is not subject to compromise.

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.

Attorneys facing DUI in Illinois

Several recent disciplinary actions taken by the Illinois Attorney Registration Disciplinary Commission (ARDC) serve as a poignant reminder to just one of the ways that a DUI arrest can affect those of us who maintain professional licensing.

Illinois Supreme Court Supreme Rule 761(a) requires an attorney admitted to practice in Illinois who is convicted in any court of any felony or misdemeanor to notify the ARDC Administrator of the conviction in writing within thirty days of the entry of the judgment of conviction. In at least one recent case, an Illinois attorney's failure to do so after a DUI arrest in Illinois ultimately resulting in a conviction for Reckless Driving resulted in his disbarment.

While this isn't a typical result of a failure to report, and the attorney's actions in dealing with the ARDC regarding his failure to report certainly contributed to his downfall, most professional regulatory boards have some similar requirement.

Those with any professional licensing facing DUI or other misdemeanor or felony charges in Illinois should take heed.

One Field Sobriety Test Making a Comeback in Illinois DUI Courts

The Horizontal Gaze Nystagmus test, or HGN, has had a tough time this year, and rightfully so. In a landmark case, People vs. McKown, the Supreme Court ruled that this mystical test had to be subjected to a rigorous legal analysis known as the Frye standard. The HGN test is used in Illinios as part of a battery of Standardized Field Sobreity tests, and is used by police officers throughout the state of Illinois to develp probable cause to arrest people.
However, the test is very, very limited. In fact, there are more than a hundred distinct causes on gaze nystagmus, and it would be a rare officer indeed who was trained to distinguish when alcohol is the only factor causing the telltale signs they are trained to examine.
After the ruling by the Supreme Court of the State of Illinois, the circuit court below determined that the test meets the standard, but imposed limitations on the general requirements for admissibility in evidence, and for its interpretation under the law. The decision was returned to the Illinois Supreme Court for futher review.
Because of those limitations, make sure your DUI attorney understands the Illinois law and protocols required for even the most limited degree of reliability of the Horizontal Gaze Nystagmus test.