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Why are some DUI cases dismissed?

There are approximately 40,000 Illinois DUI arrests each year. And that is just one state.

Over the course of an entire year, in the nation as a whole, there must be hundreds of thousands of such arrests. In fact, we personally represent many Illinois residents who have been convicted of a DUI while driving in another state and who, because of the conviction, lose their Illinois driving privileges, as provided for by law. 625 ILCS 5/6-206(a)(6) and 6-203.1
Yet whenever a well-known or prominent individual receives a favorable DUI outcome, a segment of the population, despite not knowing all the facts, cries “foul”! Many do not appreciate the fact that while there may be a rare number of cases in which “the fix is in”, the more probable explanation in the vast majority of dismissals is that the person had effective legal representation, coupled with factual and or legal deficiencies in the prosecutor’s case that the attorney was able to exploit.

If celebrity and clout were the ticket to getting away with DUI, the likes of Lindsey Lohan, Mel Gibson and Bobby Brown would not have been convicted. A recent situation in Washington State is instructive.

A judge was arrested for DUI. One thing to mention is that county prosecutor, whose office appears before the judge, removed himself from the case to avoid potential conflicts of interest. An outside lawyer who does not have contact with this judge’s court system, reviewed the evidence. Based upon that remove, he submitted a written report explaining in detail why he declined to prosecute the judge.

One means of attacking a DUI arrest is that the officer had no reasonable basis to initiate the stop. Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968) In that regard, the police were on solid grounds. The officer observed the vehicle weaving for a substantial distance, the driver failed to signal lane changes and the vehicle was traveling well above the posted speed limit. All of these constitute traffic code violations. Even if the driver in fact was not guilty beyond a reasonable doubt of committing these offenses, the arresting officer had a reasonable basis to believe the driver had violated the law.

The next step in the process is to determine whether the officer could escalate a simple traffic stop into a DUI offense? The police cannot pull you over for a traffic ticket and then immediately start investigating you for DUI.


In the case of the judge, the officer reported that he detected an odor of alcohol on the judge’s breath. The officer claimed that the judge’s eyes were bloodshot and watery and that his speech was slurred and “choppy” at times. The judge acknowledged having consumed “one beer with Judge Fisher” (another judge, who was in the car with him).

These are well known indicators of legal intoxication. While they alone do not prove intoxication, they present enough facts to allow the police officer to take further steps to investigate a DUI.

The judge declined to perform the one-legged stand, the walk-and-turn or the HGN, which are known as the standardized field sobriety tests. Here, being a judge worked to his advantage, not because he is a judge with “connections” but because any lawyer with DUI training knows that there is no penalty for refusing the field sobriety tests and that poor performance on the field sobriety tests can sink a DUI defense. Furthermore, the judge had undergone a hip replacement, which is a plausible basis upon which to refuse to engage in tests that he was destined to fail due to his hip condition.

The judge was arrested and taken to the police station. At the police station, he refused to provide any blood or breath tests to determine his blood alcohol level. This refusal obviously made it impossible to determine the judge’s blood alcohol level, although it can be used as evidence of his “consciousness of guilt”. People v. Johnson, 353 Ill. App. 3d 954, 289 Ill. Dec. 433, 819 N.E.2d 1233, (4 Dist. 2004), aff’d, 218 Ill. 2d 125, 299 Ill. Dec. 677, 842 N.E.2d 714 (2005); 625 ILCS5/11-501.2(c)(1)

Probably the final nail in the coffin of the state’s case was the likely testimony of Judge Fisher. Judge Fisher advised the police that in his opinion, the judge who was arrested was not under the influence of alcohol. He stated that the judge had 2 glasses of wine in the 3 hours they were together.

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