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Police officers in Delray Beach, Florida recently responded to a car accident in which a man driving a pick-up truck collided with a minivan, resulting in the death of all four occupants of the minivan. In investigating the crash, the driver of the pick-up truck submitted to blood testing and was ultimately charged with DUI manslaughter. While DUI-related car crashes are an unfortunately common occurrence, this one is distinctive because the driver did not consume any alcohol or any illicit drugs. Instead, the blood test revealed the driver was under the influence of difluoroethane, a liquefied gas used as a propellant. Upon further investigation, the police uncovered that the driver had huffed Dust-Off, a household cleaner, prior to the crash to get high.prisoner

The driver’s attorney has set forth the argument that since Florida does not have a defined legal limit of inhalants a driver can consume before he or she is considered impaired, the DUI charge is improper. The driver has pleaded not guilty and is awaiting a jury trial. While the pick-up truck driver’s case is the first case since 2014 in which a driver was charged with DUI manslaughter due to intoxication by inhalants, there were other instances in which drivers caused fatal crashes after inhaling intoxicants, but those drivers were not charged with DUI. The increase in charges due to intoxication by inhalants is evident throughout the country as well, including in Illinois DUI cases.

Unlike Florida, Illinois has a broader DUI statute that allows a person to be charged with DUI for reasons other than impairment due to the consumption of alcohol. Specifically, the Illinois DUI statute states that a person shall not drive if they are under the influence of an “intoxicating compound” to a degree that renders him or her unable to drive safely. These catchall provisions are specifically aimed at preventing people from driving while under the influence of non-traditional intoxicants, such as paint, markers, and aerosol spray. As a result, an Illinois license holder who inhales household intoxicants and then drives can be charged with DUI.

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Language barriers frequently arise in every day life. While apps and websites that provide quick translations to and from English and other languages are convenient, they are not suitable for all purposes. In a recent case heard in the United States District Court of the District of Kansas, U.S. v. Omar Cruz-Zamora, the court ruled that Google translate was insufficient for obtaining proper consent from a non-English speaking suspect prior to searching the suspect’s vehicle. The court held the language barriers between the suspect and arresting officers were not overcome by Google translate, and therefore the consent to search a vehicle was not given freely and intelligently and was invalid. As such, the search of the car was unconstitutional and the evidence against the suspect was suppressed. While the ruling in Omar Cruz-Zamora does not have precedential value in Illinois, it may be viewed as persuasive if the issue of adequate translation arises in Illinois DUI cases.Car

The suspect in Omar Cruz-Zamora was stopped for a traffic violation. Under the Fourth Amendment of the Constitution individuals are protected against unreasonable search and seizure. As such, since the officers did not have a warrant, they were required to make sure the suspect understood he could refuse to allow them to search the vehicle and obtain the suspect’s consent to search the vehicle.  The suspect spoke very limited English and could not understand the officers’ questions. The officers did not know they had access to a live human translator and used Google translate to advise the suspect of his rights and obtain his consent. The translations provided did not accurately communicate the information the officers were trying to convey and there was no evidence the suspect understood his right to refuse to allow his vehicle to be searched or the purposes for which his consent was requested. The suspect ultimately consented to the search, and upon searching the vehicle the officers found illicit drugs and arrested the suspect.

At the trial, the suspect testified he was confused as to what the officers were asking and did not know he had the right to refuse to allow them to search the vehicle. Translators called upon to assess the accuracy of Google translate testified it often provided a literal but nonsensical translation, and therefore was not a reliable translation tool. The suspect argued that any evidence obtained during the search was obtained without his consent and should be suppressed. Upon reviewing the evidence, the court found it was clear the suspect did not understand what the officers were asking when he consented to the search. Further, the court found the good-faith exception the exclusionary rule of evidence obtained via unlawful searches did not apply because it was unreasonable for the officers to rely on Google translate. As such, the court granted the suspect’s motion to suppress.

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The Supreme Court’s recent ruling in Birchfield v. North Dakota continues to affect DUI law throughout the country. The Birchfield ruling stated, among other things, that DUI suspects who refused to submit to a blood test without a warrant could not be subject to increased criminal penalties for their refusal. Last month, the Supreme Court of Pennsylvania granted an appeal on the narrow issue of whether it is unconstitutional to introduce evidence of a suspect’s refusal to submit to a warrantless blood test at trial as evidence of the suspect’s guilt. While the court’s ruling will only be applicable in Pennsylvania, it is anticipated it will be persuasive for courts in other states ruling on the same issue, and may impact the prosecution of DUI cases throughout the country, including Illinois DUI cases.

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In Commonwealth v. Bell, the suspect was detained for inadequately illuminated headlights. On approaching the suspect’s vehicle the officer observed the suspect had glassy and bloodshot eyes, and an odor of alcohol. The suspect subsequently admitted he consumed four beers. The officer then administered a field sobriety test, which the suspect failed, and a Breathalyzer test, which indicated the suspect had a blood alcohol concentration of .127%. The suspect was arrested for DUI and taken to a hospital for testing of his blood alcohol content. After the suspect was read the chemical testing warnings, however, he refused to submit to a blood test.

The suspect was charged with DUI. Prior to his trial he filed a motion to dismiss the charge, arguing he had a constitutional right to refuse to submit to the blood test, and therefore, his refusal should not be admitted into evidence. The suspect’s motion was denied and the prosecution was permitted to introduce evidence of the suspect’s refusal to submit to the blood test. The suspect was subsequently convicted of DUI.

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Impaired drivers are a hazard of the road and cause thousands of fatal collisions each year. While alcohol has been the leading cause of impaired driving for decades, drugs recently surpassed alcohol as the leading cause of impairment in collisions involving an impaired driver. The increase in drug related collisions is likely due to several factors, including the opioid epidemic and legalization of marijuana. While many drivers are impaired due to the use of illicit drugs, drivers who are using legally prescribed medications still face the risk of impairment if they are unfamiliar with the side effects of their medication.blood test

Presently, there is no national standard for testing a driver suspected of DUI for opioids, marijuana or other drugs, and police officers often struggle with recognizing the signs a driver is impaired due to drugs. Under the current law, Illinois DUI suspects can be subjected to testing of their blood, urine or breath if impairment is suspected. The currently available drug tests, which utilize a suspect’s blood and urine, can be costly and take a long time to administer, which may allow for the suspect’s body to eliminate some or all of the drug. As such, police departments have been searching for technology that would allow for quick, easy, and accurate testing of whether a suspect has ingested any prescribed or illicit drugs that would cause impairment, similar to the way a Breathalyzer test detects alcohol.

In the near future, the Police Department of Carol Stream Illinois will begin testing newly developed technology by administering drug tests via a mouth swab, which will allow them to test for opioids, marijuana, and amphetamines. The Carol Stream Police Department appears to be the first police department in Illinois to begin using driver drug tests. The tests not only give a positive result if the suspect has drugs in his or her system, but will provide measurements of the amount of drugs present. The Carol Stream police plan to conduct field tests to determine the accuracy of the mouth swab tests, by asking DUI suspects who submit to a blood test to submit to the mouth swab as well, so the results of both tests can be compared.

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One of the many protections afforded individuals by the United States Constitution is the Fourth Amendment protection against unreasonable search and seizure without a search warrant. There are certain exceptions to the shield provided by the Fourth Amendment, one of which is the automobile exception. Under the automobile exception, a police officer may search an automobile without a warrant as long as he or she has probable cause to believe there is evidence or contraband in the vehicle. While the automobile exception limits the protections provided by the Fourth Amendment, it is important to know the scope of authority police officers are afforded by the exception. If the automobile exception was unjustly applied to obtain evidence in your Illinois DUI case, you may be able to prevent the evidence from being used against you.gavel

Recently, in Collins v. Virginia, the United States Supreme Court held that the automobile exception to the Fourth Amendment does not permit a warrantless entry of the curtilage of a home, and in doing so specifically declined to extend the exception to allow searches outside of the automobile itself. In Collins, police believed the suspect was in possession of a stolen motorcycle after an officer observed the motorcycle under a tarp in the suspect’s driveway. The officer then proceeded to walk up the driveway, uncover the motorcycle, and run the license plate number to confirm it was stolen. When the suspect returned to his home, he was arrested. During his trial, the suspect filed a motion to suppress the evidence, arguing that, in performing the search without a warrant, the officer trespassed on the curtilage of the suspect’s house. The trial court denied the suspect’s motion and he was convicted of receiving stolen property. On appeal, the Virginia Court of Appeals affirmed the trial court ruling, holding exigent circumstances justified the officer entering the property and uncovering the motorcycle to view the license plate. On further appeal, the State Supreme Court affirmed the trial court ruling on different grounds, holding that the officer was permitted to conduct the warrantless search by the automobile exception.

The case was then appealed to the Supreme Court of the United States. In ruling on the case, the Court noted that officers may search an automobile without a warrant as long as they have probable cause, but it declined to expand the scope of the automobile exception. The Court explained curtilage, which is defined as the area surrounding and associated with a house, is thought of as part of the house for purposes of the Fourth Amendment, and, as such, a search of the curtilage constitutes a Fourth Amendment search and is unreasonable without a warrant. The Court rejected Virginia’s argument that the automobile exception permitted a warrantless search of an automobile at any time, in any place, stating that to rule otherwise would defeat the Fourth Amendment protection that extends to a house and its curtilage, ultimately creating a much broader exception than was intended. The Court held that, contrary to the argument set forth by Virginia, the automobile exception does not afford officers the right to search any space outside of the automobile. The Court further noted that allowing warrantless searches of vehicles parked in the curtilage violated both the sanctity of the curtilage and the Fourth Amendment interest in the vehicle. Lastly, the Court declined to adopt Virginia’s reasoning that the automobile exception should allow warrantless searches of the curtilage only, and not the house associated with the curtilage, noting this would lead to both confusion and diminished protection for individuals who could not afford built-in garages.

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In the ever-changing landscape of Illinois DUI law, it can be unclear what rights and protections are afforded an individual detained on suspicion of DUI. While individuals who refuse to submit to roadside sobriety testing or a Breathalyzer test face an automatic suspension of their drivers’ license, they could avoid being convicted of a DUI due to the lack of evidence of their blood alcohol level.

carRecently an Illinois man who had previously been convicted of DUI on five occasions managed to evade a sixth DUI conviction where a jury found the prosecution lacked any concrete evidence he was driving while impaired. T.W., of Algonquin, Illinois, was traveling on Route 31 in Crystal Lake when he was pulled over by the police for speeding. When he approached the car, the police officer that stopped T.W. noticed he had glassy eyes, slurred speech and an odor of alcohol. The officer also observed an open can of beer in the car. T.W., who was also previously convicted four times for driving with a suspended or revoked license, admitted to the officer he was driving with a suspended license, but tried to convince the officer to let him go since he was close to his house.

T.W. refused to submit to a roadside sobriety test or undergo a Breathalyzer test. He was arrested and charged with aggravated driving under the influence, which is a felony. At trial, the arresting officer testified that during the traffic stop T.W. had bloodshot eyes and “mush mouth.” He further testified that T.W. became belligerent while being transported to the police station, yelling at the officer to go find real criminals. T.W. also accused the officer of drinking and driving, but being able to get away with it due to his badge.

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Do you know whether the machine used to administer the breath test in your DUI case was properly certified? Most states, including Illinois, have regulations to ensure the accuracy of breath test machines. If the state relies on results from an improperly certified breath test machine in prosecuting a DUI case against you, it can greatly affect the outcome of your case and may provide grounds for avoiding or overturning a conviction.

breathalyzerRecently, the impact of certification issues was felt by prosecutors throughout Nebraska, when hundreds of DUI cases were affected when it was revealed the machines used for official breath tests were improperly certified. While Nebraska police officers administer preliminary breath tests when they suspect a person is driving under the influence of alcohol, many DUI cases rely on results from official breath test machines, which are usually in jails. State regulations require the official breath test machines to be tested regularly to ensure accuracy.

While defending a DUI charge against a client, a Nebraska criminal defense attorney noticed discrepancies in certifications for the official breath test machines. His discovery prompted an investigation which revealed that the individual responsible for testing and certifying the accuracy of breath test machines throughout the state had not actually tested the machines. Subsequently, all DUI cases relying on results from the official breath tests were affected. In cases that relied solely on the official breath tests, prosecutors lacked any evidence with which to convict the defendants.  Moreover, the lack of certification greatly impacted the prosecution’s ability to prove cases in which it was alleged the defendant had committed an aggravated DUI, which requires proof the defendant had a blood alcohol concentration higher than 0.15 percent in Nebraska.

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The State of Illinois appealed from the lower court’s granting of three co-defendants’ motions to suppress contraband found following a dog sniff of their car. This fall, the Illinois Court of Appeals for the Second District held that the dog sniff violated the Fourth Amendment because the traffic stop was illegally prolonged. This case’s analysis of the Fourth Amendment is relevant to Illinois DUI law.

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The three defendants were charged with armed violence, unlawful possession of heroin with the intent to deliver, and unlawful possession of heroin. The defendants moved to suppress the evidence seized from the car that defendant 1 drove and in which defendants 2 and 3 were passengers.

One afternoon in November 2015, an Illinois officer noticed a car with Minnesota license plates closely following a tractor-trailer. In addition, some of the car’s windows were tinted heavily. Thus, the officer effectuated a traffic stop.

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After failing field sobriety tests, an Illinois defendant was arrested for DUI. At the police station, an officer read the defendant the required admonitions, and the defendant submitted to a breathalyzer test, showing his blood alcohol content was within the legal limit. Then, the officer requested that the defendant submit to blood or urine testing. The defendant refused, and his driver’s license was suspended. He filed a petition to rescind the suspension, which the trial court denied. He appealed, arguing that his petition should have been granted because the officers (1) lacked a reasonable suspicion to request blood or urine testing and (2) failed to issue him a second warning before requesting blood or urine testing. In a case relevant to all Illinois DUI law, this fall, the Illinois Court of Appeals for the Third District affirmed.

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At the hearing, the Shorewood police officer testified that while on patrol at around 1:12 a.m. on April 4, 2016, he observed the defendant commit multiple lane violations. The defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and veered toward the opposite lane of traffic. After observing the defendant commit “approximately five lane violations,” the officer effectuated a traffic stop.

The officer approached and asked the defendant for his license. In attempting to retrieve his license, the defendant’s hands slipped multiple times, and before handing the license to the officer, the defendant dropped it in his lap. He also dropped his cell phone in his lap. The officer asked the defendant if he had drunk alcohol or was on any medication, and the defendant answered in the negative to both.

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Pursuant to Georgia law, a trial judge may decide whether a procedure in question has reached a stage of scientific certainty. The trial court makes this determination based on evidence presented to it during trial, or based on exhibits, treatises, or cases from other jurisdictions. The trial court ultimately decides based on the evidence available to him rather than by calculating the consensus in the scientific community. This issue came up before the Georgia Supreme Court this fall in the context of a DUI appeal. It could play a role in Illinois DUI proceedings at some time as well.

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Following a jury trial, a Georgia woman was convicted of DUI and possession of an open container. She appealed the DUI. The appeals court affirmed, and the Georgia Supreme Court granted certiorari to consider whether the intermediate court erred in holding that the trial court properly admitted the police officer’s testimony correlating her horizontal gaze nystagmus (HGN) test results with her blood alcohol content (BAC). The Georgia Supreme Court reversed her conviction because the testimony lacked a sufficient foundation.

The defendant was pulled over for a broken headlight, and the officer observed that her speech was slurred and she smelled of alcohol. Moreover, she was wearing a wristband from a bar, and there was a plastic cup in the center console that seemingly contained alcohol. The officer administered an HGN test, which revealed four out of six cues suggesting impairment.