Illinois DUI Lawyer Blawg

In all likelihood, the vast majority of police officers are honest people trying to do their jobs. They may have a different take as far as the specifics of a particular arrest for DUI are concerned and sometimes they may be mistaken. But for the most part, they call it as they see it.

Unfortunately, on occasion, a police officer appears to be predisposed to making a DUI arrest when none is justified. This may occur due to past encounters between the accused and the officer, a long standing personal history, racial animus or any of the other reasons that some people in power abuse it.

There are numerous opportunities for a dishonest cop to exaggerate, distort and even fabricate evidence and observations. In many cases, it comes down to the word of the accused versus the officer.

The officer has two advantages: First of all, he carries a badge. The other is that he, unlike the person arrested, the assumption is that he has no dog in the hunt, in other words, he is neutral.

Close examination of a DUI arrest shows the stages at which evidence is gathered and can be manipulated. The police must have some reason to come into contact with a driver in the first place, unless there is a roadblock/safety check, in which case specific safeguards must be in place in terms of the timing and execution of the roadblock.

Police may also stop a driver based upon an anonymous tip provided they can prove to the judge that the tipster was “reliable”. People. v. Hansen, 2012 Il. App (4th) 110603 Another encounter can occur when the police are executing a “community caretaker function” such as helping a driver with a flat tire.

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Illinois law prohibits Driving Under the Influence (DUI). 625 ILCS 5/11-501 In terms of alcohol, this prohibition takes two forms.

The first form of Illinois DUI law makes it illegal to drive under the influence. In these types of case, the prosecutor must prove that as a result of consuming alcohol, the accused was impaired in his ability to operate a motor vehicle.

At times, this can be difficult to prove, despite an array of tools that the courts and General Assembly have made available to law enforcement, such as standardized field sobriety tests, the preliminary breath test, the presumption that if you refuse a test, it is evidence of a “guilty mind” and a general relaxation of a defendant’s rights under the United States and Illinois constitutions. Therefore, the DUI laws have been repeatedly altered to stack the deck even further against the defendant.

There is a second type of DUI, known as “per se” because the State does not have to prove that your driving is impaired due to alcohol. it is automatically assumed that you are guilty of DUI if the prosecutor is able to prove, beyond a reasonable doubt, that your blood alcohol content (BAL) was .08 or higher when you were operating a motor vehicle.

There are purported safeguards built into the process to ensure that the machine that calibrates your BAL is accurate and is administered by someone properly certified by the Illinois State Police to do so. 20 Illinois Administrative Code Part 1286. These rules establish the police training, lab procedures, breath test certification and sampling protocol that relate to the breath test.

However, courts have bent over backwards to let in evidence that is not properly documented. Thus, despite the clear requirement that police maintain a log of breath test results, courts have let the police off the hook when the log cannot be produced. People v. Claudio 371 Ill. App. 3d 1067 (2007)

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The offense of Driving Under the Influence is also known as DUI. Illinois DUI law provides that driving under the influence of alcohol is a crime. 625 ILCS 5/11-501(a)(2) In this type of DUI charge, the prosecutor will attempt to prove that your ability to act with reasonable care is impaired due to the consumption of alcohol.

Just as any competent person is able to do, a police officer can give opinion testimony about intoxication. This includes physical manifestations of intoxication, such as slurred speech, bloodshot eyes, poor balance, difficulty following directions and saying the same thing, or asking the same question, repeatedly.

Non physical manifestations of intoxication include extreme moods (crying or argumentative), confusion as to current location, destination, time and day, disheveled appearance (clothing messed up) and difficulty performing basic tasks such as locating and or removing a driver’s license, insurance card or proof of registration.

Furthermore, the National Highway Traffic Safety Administration (NHTSA) training manual for DWI detection identifies twenty cues of intoxication that police are trained to know. The most common cue is an overly wide turn.

NHTSA has also devised a set of three standardized tests that, according to NHTSA, are designed to demonstrate that a subject is over the legal limit for safe driving. These are known as the Standardized Field Sobriety Tests (SFST).

The first test administered is the Horizontal Gaze Nystagumus (HGN). In this test, the officer administering the test waves a pencil in front of your eyes. The reaction of your eyes supposedly gives clues as to whether you are intoxicated. As is the case with all the SFST, the results of the HGN are based upon the officer’s subjective interpretation of the tests.

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The United States Supreme Court, in a case known as McNeely v. Missouri, issued an important decision related to Driving Under the Influence, or DUI, and search warrants. The Court decided that in most cases, before the police can force a DUI suspect to give blood, they must obtain a search warrant.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. It further states that no search warrant shall issue without probable cause.

In essence, the government cannot search you or your home without a warrant issued by a judge. The judge should not issue the warrant unless the police provide evidence to the judge that there is some good reason to approve the warrant and authorize a search.

There are many exceptions to the warrant requirement. A number of the exceptions apply to motor vehicle stops, including DUI arrests.

Exceptions to the warrant requirement include searches made during an arrest (police can pat you down for weapons in the process of an arrest) and searches in which the police are already in legitimate contact with you and observe something “in plain view” (stopped for a traffic ticket; during the stop, the police see an open container on the floorboard). In addition, searches done with your consent (do you mind if I search your trunk? No go right ahead) and “stop and frisk” searches (officer observes what appears to be a street corner drug transaction and approaches the suspect to question him and then pats him down for weapons) do not require a warrant.

Another exception applies to emergency situations, where the evidence can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued (drugs flushed down the toilet). This exception was pertinent to the McNeely decision.

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The charge of driving under the influence, or DUI, carries with it criminal penalties as well as consequences on a driver’s license. While a first DUI is serious and a second is more so, it only gets worse when you have a prior conviction for reckless homicide in connection with the operation of a motor vehicle on your record.

For years, a DUI that resulted in death was charged under the Criminal Code (720 ILCS 5/9-3) as reckless homicide in the operation of a motor vehicle. The law as written assumed that if you were under the influence of alcohol and you killed someone, your conduct was reckless.

In People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003), the Illinois Supreme Court held that this presumption violated the constitution by improperly shifting the burden to the defendant of proving that he was not guilty. This was the second occasion on which the Supreme Court had ruled the statute was unconstitutional.

In response, the Illinois General Assembly created a new category of DUI offenses known as aggravated DUI. One form of aggravated DUI involves a DUI committed during which one or more people die. 625 ILCS 11-501(d)

Prosecutors in McHenry County Illinois recently charged a driver who had served 12 years in prison for reckless homicide, for which he was currently on parole, with a DUI offense. The allegation, as yet unproven, is that the driver was under the influence of prescription medication.

The DUI law has six categories of driving under the influence. The first is driving with an alcohol concentration of .08 or greater. Category number two is driving under the influence (used when there is no evidence of an alcohol concentration).

A third category of DUI is driving under the influence of intoxicating compounds to an extent that it renders you incapable of driving safely. If they influence your driving, you may be charged with DUI. Examples would be sniffing glue or “huffing” gases.

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