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ir-hemp-leaf-866036-mThe Illinois State Bar Association submitted a bill to the Illinois legislature last month seeking to amend Illinois’ no-tolerance DUI law.

The bill refers to a 2011 incident in Lake Island where driver Scott Shirey was charged with homicide when his son died in a car crash. The accident was not Shirey’s fault, but he was nonetheless charged because he smoked marijuana one month before the incident.

Law enforcement officials are legally required to take blood tests of all drivers involved in car crashes that result in death or serious bodily injury.

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Defendant, Mr. Chiaravalle, was charged with a DUI in January 2014. His attorneys filed a pre-trial motion to bar the admission of his Breathylzer test, arguing it was improperly administered. The lower court granted the motion and the state appealed. The appellate court agreed with the state and reversed.

Breathalyzer

In February of 2014, the defendant pleaded not guilty and the state summarily suspended his license. He filed a request for a hearing and a petition to rescind the suspension, arguing the arresting officer failed to properly administer the breath test. The trial court judge conducted a hearing and found that the arresting officer failed to comply with the statutorily prescribed 20 minute observation period following the breath test because he turned his back on the defendant several times. Finding that the necessary foundation for the test was not met and that the observation failed, the judge granted the petition to rescind the summary suspension. A subsequent judge adopted these findings at a pre-trial motion hearing, stating that there had been no substantial compliance with the 20 minute observation period. The court granted the defendant’s pre-trial motion to suppress the Breathalyzer results and the state appealed. The appellate court ultimately sided with the state.

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get-your-motor-runnin-1173983-mA Champaign County trial judge’s improper response to deliberating jurors prompted an Illinois appellate court to reverse one defendant’s aggravated DUI conviction recently.

Mr. Hasselbring, 31, was charged after cocaine metabolites were found in his blood following a motorcycle accident killing his friend, a Mr. Piat, age 26. Piat died in November 2010 from head trauma sustained during the September 2010 accident. Hasselbring’s motorcycle collided with Piat’s motorcycle in Champaign as the men headed a band of motorcyclists heading east on Kirby Road.

On June 2011, defendant was charged with aggravated DUI, a felony, due to the cocaine metabolites found in his system. Judge John Kennedy presided over Hasselbring’s jury trial and sentenced him to 11 years in prison.

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Bob Avellini, Chicago Bears quarterback from 1975 to 1984, was sentenced last month to 18 months in prison for an aggravated DUI. Avellini agreed to plead guilty in exchange for the sentence. Had he not taken the plea, Avellini could have been sentenced to up to seven years for the felony DUI. DuPage County judge Daniel Guerin ordered Avellini to commence serving his sentence on December 1 of this year.

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In September 2013, 61-year-old Avellini was charged with a felony DUI and a probation violation when police stopped him near his Roselle home. According to the police, he smelled of alcohol, had “glassy bloodshot eyes” and slurred speech, and had a blood alcohol level of .181, more than twice what is legally permissible. He was just nine days into serving a 2002 DUI conviction, which involved a license suspension. Since 2002, Avellini has been arrested for six DUIs and has been convicted of three according to court records.

One of Avellini’s attorneys, David Spada, said that Avellini suffers from depression and post-concussive syndrome as a result of brain trauma incurred while playing football. Spada claims the depression likely contributes to Avellini’s issues with substance abuse.

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chemistry-lab-1-149746-mThe Fourth Amendment protects citizens from unreasonable searches and seizures by the government. Searches and seizures executed without a warrant are presumed unreasonable unless there is an established exception. The Supreme Court has found the act of drawing an individual’s blood (such as in a DUI investigation) to be a form of a seizure requiring a warrant, unless exigent circumstances make obtaining a warrant impractical. Courts evaluate the totality of the circumstances on a case-by-case basis to determine whether exigent circumstances justify a warrantless search. Exigent circumstances have been found to exist where the time needed to obtain a warrant would result in the destruction of evidence.

Last January, the United States Supreme Court decided in Missouri v. McNeely that in DUI investigations, the natural diminution of alcohol in a defendant’s bloodstream does not necessarily constitute an exigent circumstance sufficient to bypass the Fourth Amendment warrant requirement. Thus, if a DUI suspect does not consent to a blood test, the police will likely have to obtain a search warrant, issued only upon a showing of probable cause to believe the suspect is under the influence of a detectable drug. The Court noted, however, that the natural dissipation of alcohol may support a finding of exigency in a specific case, where other factors, such as the required procedures for obtaining a warrant and the availability of a judge, may affect the timeframe significantly.

In the past month, Illinois appellate courts have had the opportunity to interpret of McNeely in two cases – People v. Armer and People v. M. Gaede

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Screen Shot 2014-11-03 at 11.27.04 AMIllinois recently updated its DUI law in response to its new medical marijuana law, which became effective in January of 2014. Under the new law, an authorized medical marijuana user can legally use marijuana and operate a motor vehicle as long as he or she is not impaired while driving. However, a licensed user now gives up certain rights in exchange for this immunity. Normally, under Illinois law, a person being investigated for a DUI is not required to submit to field sobriety tests and there is no penalty for refusing to take or failing the tests. Under the new law, however, a licensed marijuana user must submit to these tests if the officer has reasonable suspicion the person is driving under the influence of marijuana. If the licensed user fails or refuses testing, he is subject to suspension or revocation of his driving privileges.

This October, an Arizona appellate court came to a similar, if slightly less explicitly stated, conclusion, holding that drivers with medical marijuana licenses can nonetheless be charged with driving under the influence.

Before the court was the question of whether Arizona’s Medical Marijuana Act (AMMA) prohibited the State from prosecuting a licensed marijuana user for a DUI. The court concluded that AMMA does not grant such immunity.

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The Wisconsin State Bar Association discussed an appellate court case from that state regarding whether someone could be guilty of Driving Under the Influence (DUI) on a bicycle.  The bicycle in question could be self-propelled by an electric motor or could be pedaled without the assist, or could operate with a combination of the two.  Because of the specific facts of the case, the court avoided the question of exactly what Wisconsin law does and does not prohibit on a bicycle.

Wisconsin law prohibits the operation of a “motor vehicle” while under the influence of alcohol. The defendant (the accused) argued that a bicycle is not a “motor vehicle” and he thus could not be guilty of DUI.

However, under Wisconsin law. a motor vehicle is defined as any self-propelled vehicle. The prosecution argued that since the bicycle was motor-assisted, it was a motor vehicle.

The appellate court did not accept that argument wholesale but nevertheless sided with the State due to the specific facts. After observing the defendant’s actions, police gave chase. Continue reading →

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A news media outlet filed a report concerning a DUI offense that occurred in Illinois. The report indicates that 11, resulting in the death of a passenger and injuries to other passengers.

The driver is charged with what is known as “aggravated DUI”.  Under Illinois law, aggravated DUI is a felony. (625 ILCS 5/11-501(a)(1))

A standard DUI is a class-A misdemeanor, the highest level misdemeanor, just a step below a felony.  The maximum penalty for a Class-A misdemeanor is  364 days in the county jail and or a fine of no more than $2,500.  (730 ILCS 5/5-4.5-55)

The term “aggravated DUI” means that in committing a DUI, the driver did something while driving drunk that makes his or her conduct more serious than a standard DUI, so much so that it is considered felonious.  There is list of aggravated DUI offenses at 625 ILCS 5/11-501(a)(1).

The lowest level felony (Class-4) is 1-3 years in prison. A Class-3 is 2-5 years. The sentence for a Class-2 felony is 3-7 years and a Class-1 is 4-15 years.

Each felony can also carry fines and in general, subject to an ever-growing list of exceptions, probation instead of or in combination with, prison, is available. On the other hand, for a Class-X felony, probation is not available and the term of imprisonment is 6-30 years. (730 ILCS Chapter V)
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Those who are arrested for DUI in Illinois must understand how long the look back period will be.  As is the case with much of the law governing Driving Under the Influence, the answer is not clear because it is based upon political compromises and court interpretations of sometimes ambiguous language.

The answer depends upon to what the question pertains. Driver’s license or criminal charges? Suspension or revocation?

Begin with the criminal case. A DUI conviction can carry a sentence of up to 364 days in jail, two years of probation, a $2500 fine or any combination of the three, as it is a Class-A misdemeanor. (625 ILCS 5/11-501)  The best outcome for someone who is found guilty of the DUI offense with which he or she is charged is court supervision. (730 ILCS 5/5-6-3.1)

Court supervision can never carry a jail sentence.  While court supervision requires that you plead to, or are found guilty of, the offense, it is not a conviction, the latter of which requires the Illinois Secretary of State to revoke your driver’s license.

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An Interlock Ignition Device (IID) is a machine that is internally connected (“interlocked”) into your motor vehicle’s ignition. Unless you blow into a tube that runs to the machine and blow below a predetermined breath alcohol level (BAL), your vehicle will not start. Furthermore, to ensure that you did not have someone else blow on your behalf just to get you on the road, you must retest at given intervals while the vehicle is moving (“rolling retest”) or the vehicle will stall.

For the purpose of Illinois DUI law there are two types of driving privileges that stem from an IID.  One of these is known as a Breath Alcohol Interlock Ignition Device (BAIID); the other, a Monitoring Device Driving Permit (MDDP).  Both of these permissions to drive require use of the same type of IID, but which of the permissions applies depends upon the status of your Illinois driving privileges.

This requires an understanding of the differences between driver’s license suspensions and revocations and between administrative sanctions and criminal consequences. A suspension represents a temporary removal of your driving privileges for a specified period of time. When the suspension time ends, your driving privileges will be restored upon payment of the appropriate fee, unless your driving privileges are otherwise invalid.

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