Articles Posted in 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.

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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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.

Recently 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.

Recently, 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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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.

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.

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.

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Excessive force is when a police officer uses force beyond what a police officer should reasonably believe is necessary. A police officer may be held liable for using excessive force during an arrest, traffic stop, or other detentions–such as during an Illinois DUI arrest. A police officer can also be liable for failing to prevent or explicitly endorsing another officer’s use of force. While excessive force is typically a civil charge, there are related criminal charges, such as assault by a police officer.

This fall, a 41-year-old Northern California police officer was arrested for assaulting a DUI suspect with his baton. The victim was taken to the hospital to be treated for injuries that were not life-threatening. After being cleared by the doctors, he was taken to jail on DUI charges, failure to yield, and resisting arrest. The victim claimed that in beating him with the baton, the officer broke the victim’s arm and fractured his finger. He continues to deal with emotional trauma resulting from the incident.

The Rocklin Police Officer was taken into custody in late September 2017. He was charged with assault with a deadly weapon causing great bodily harm, filing a false police report, and assault under the color of authority. The last charge is defined as follows by the California Penal Code:

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The Fourth Amendment protects U.S. residents from unreasonable governmental searches and seizures. This fall, the Illinois Supreme Court was tasked with deciding whether an alleged hospital blood draw violated an Illinois DUI defendant’s constitutional rights.

The defendant was charged with DUI following a motorcycle accident. He filed a motion to suppress the results of blood-alcohol testing on the ground that the blood draw performed at the hospital after his accident violated the Fourth Amendment. Specifically, he argued that the police officers forcibly placed him in an ambulance, despite his refusal of medical treatment. The motion further argued that the blood draw performed at the hospital was a search conducted without a warrant, without consent, and without exigent circumstances. The trial court granted defendant’s motion, and the appeals court affirmed. The state petitioned to the Illinois Supreme Court, which accepted the appeal and reversed.

The state argued on appeal to the Illinois Supreme Court that the lower court erred in holding that the defendant established a prima facie case that the alleged blood draw was an unreasonable search. The state high court agreed.

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The Fifth Amendment to the United States Constitution protects Illinois DUI defendants and those in other states from self-incrimination. The Georgia Constitution’s protection is broader. It applies to more than just testimony, also applying to coercive acts that generate incriminating evidence. This fall, the Georgia Supreme Court had to decide whether the Georgia Constitution‘s protection prohibited police from forcing someone suspected of DUI to be breathalyzed.

The defendant was convicted of DUI and related traffic offenses. He appealed. He challenged the lower court’s denial of his motion to suppress the results of a breath test. He argued that Georgia’s implied consent notice statute was unconstitutional. He further contended that his state constitutional right against self–incrimination was violated when law enforcement asked to breathalyze him, and the deceitful language of the implied consent notice was coercive. For these reasons, the defendant argued that the admission of his breath test results violated his constitutional rights.

The court agreed with the defendant that taking a breath test implicates a Georgia resident’s state constitutional right against compelled self–incrimination, and it overruled precedent ruling otherwise. The court reasoned that the relevant portion of the Georgia Constitution prohibits compelling a suspect to perform an act producing incriminating evidence, but it does not ban compelling a suspect to be present so that another person may perform such an act.  And, as with other constitutional rights, a suspect may consent to act in a way the statute would prevent the state from compelling.

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Washington State law defines “vehicle” to include bicycles. In 1995, however, the Washington Court of Appeals ruled that the state DUI statute does not include bicycles. While this case is not controlling law in Illinois, attorneys who help people charged with an Illinois DUI find its reasoning compelling.

At about 3 a.m. in June 1992, the defendant was riding his bicycle in Montesano, Washington. An officer pulled him over after watching him swerve and make wide turns. The officer testified that the defendant had slurred speech and smelled like alcohol. The officer asked him to perform field sobriety tests, several of which he failed. He was arrested for DUI. At the station, he waived his Miranda rights. A breath test indicated his blood alcohol level was .13.

Following a bench trial, he was convicted of driving while intoxicated. His motion for a new trial was denied, and he appealed.

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This summer, the Florida Supreme Court heard arguments regarding whether the state has sufficient rules for measuring the blood-alcohol levels for DUI suspects. The case arose after a Palm Beach millionaire was convicted of DUI manslaughter following a 2010 collision. His attorneys challenged the Florida Department of Law Enforcement (“FDLE“) rules before the state high court. While the rules are not exactly the same in Illinois, people charged with an Illinois DUI may raise similar types of arguments in some cases.

Following a late-night two-vehicle accident, in which the other driver died after his vehicle was submerged in a canal, the defendant was charged with DUI manslaughter with failure to render aid (Count 1) and vehicular homicide with failure to render aid (Count 2). He was convicted and sentenced following his first trial. After juror misconduct came to light, his first conviction was vacated, and he was granted a new trial.

At the second trial, the evidence showed that he ran a stop sign without braking and “t-boned” the victim. He was going 63 miles per hour in a 35 mile per hour zone. The force of the impact pushed the victim’s Hyundai through the intersection and into a nearby canal, where it came to rest upside down. The defendant did not remain on the scene or assist the victim, who ultimately drowned. The victim did not sustain fatal injuries in the collision itself. Earlier in the evening, the defendant had consumed alcohol at several venues, the amount of which was a contested issue at trial. He was charged with DUI Manslaughter, Failure to Give Information or Render Aid, and Failure to Render Aid and Vehicular Homicide.

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