Illinois DUI Lawyer Blawg

Illinois, as is the case with most states and the federal government, makes it illegal to possess marijuana. A few states recognize medicinal marijuana, which can be used with a prescription.

A couple of states recently decriminalized (made legal) marijuana use. A topic for another time is how those states will square their laws with the fact that marijuana possession remains a federal offense should the Federal Government choose to press charges.

That aside, driving under the influence (DUI) is illegal in all 50 states, including Illinois. 625 ILCS 5/11-501 While the term used is “driving” under the influence, the specific law makes it illegal, while “under the influence”, to drive or to be in “actual physical control” of a “vehicle” anywhere within the State of Illinois.

A “vehicle” includes any device upon which property or person may be transported, excluding human-powered devices. 625 ILCS 5/1-217 Therefore, it is not illegal to operate a bicycle while under the influence. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV is, however, covered, even though you are not required to have a driver’s license or license plate to operate one.

“Under the influence” does not require the State to prove you were “drunk, intoxicated, buzzed” etc. Rather, a person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care IPI (Criminal) 23.29 In essence, you may convicted of DUI based upon nothing beyond proof that alcohol reduced your ability to think and act normally.

You may also be convicted of DUI in a way that does not require proof of actual impairment. If the state can show through chemical testing that your blood alcohol level at the time you were driving or in actual physical control of a vehicle was .08 or higher, you are just as guilty as though the State had proven your ability to drive was impaired due to alcohol.

In these blood-alcohol level type of cases, the defense must attempt to attack the manner in which the test was administered or assail its general reliability to prove accurate results, or otherwise show a judge or jury that the police engaged in other irregularities that tainted the evidence or that violated your Constitutional rights. While evidence of your apparent intoxicated or sober state are not required in this type of prosecution, such evidence can either support or erode the jury’s confidence in the chemical test results that the state proffers as proof of your being .08 or above.

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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.

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Carlton Fisk was one of the great major league baseball catchers to ever suit up. He played for the Boston Red Sox from 1969 to 1980 and for the Chicago White Sox until he retired in 1993.

In the 1975 World Series, cameras caught Fisk in probably the most iconic moment ever captured live in sports history, as he “English-ed’ his home run ball fair in the early morning hours of Game 6 of the 1975 World Series at Boston. Cameras then captured him jumping for joy, earning NBC an Emmy award.

Fisk has now been arrested in Illinois for a DUI. Early news reports indicate Fisk was passed out in a cornfield near New Lennox, seated in his truck, engine running, tire flat.

Police found an open vodka bottle in the passenger seat. Police charged Fisk with illegal transportation of alcohol (the open vodka bottle), contrary to 625 ILCS 5/11-502, as well as for Driving Under the Influence of Alcohol (DUI) and improper lane usage (“weaving”).

After police awakened him, Fisk agreed to go to the hospital. However, once at the hospital, Fisk would not submit to a blood draw at the officer’s request.

In DUI cases involving an accident with injuries, there are typically two blood draws involved. When a person is transported to the hospital, the emergency room will normally draw blood in the normal course of treatment. This draw is important to the medical personnel treating the patient, as information about the contents and quantify of substances in a person’s blood stream is important in determining the diagnosis and treatment of any injuries
This draw is known as the “medical draw” because the blood is drawn for purposes of treatment. The results of the medical draw are admissible in a prosecution for DUI. 625 ILCS 5/11-501.4.

Such information can be used to prove actual impairment (drunk driving). The law presumes that someone with a blood alcohol level (BAL) of .08 or higher is under the influence, presumes that a BAL of .05 or less is evidence you are not impaired and creates no presumption when a BAL is greater than .05 but less than .08. Presumptions can be overcome with contrary evidence but the party with a favorable presumption has a leg up. 625 ILCS 5/11-501.2
The medical draw may also be used to demonstrate that the accused either was or was not guilty of a “per se” violation of the DUI law. Under the “per se” analysis, the state does not have to prove that the defendant was actually impaired. The mere act of driving with a BAL of .08 or above is, in and of itself, illegally, even though there may be absolutely no evidence of impairment, such as unsteady balance, blood shot eyes, a strong odor of alcohol and bad driving indicative of impairment, such as weaving. 625 ILCS 5/11-501(a)(1)

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Someone who is arrested for Driving Under the Influence (DUI) may have questions about how long the DUI can be used against him. This issue can arise in several contexts but should not be confused with similar but different situations.

A statute of limitations as a defense to a DUI charge is limited to one specific situation. The state (police and or prosecutor) must, in charging any criminal offense, including DUI, allege in a written instrument the date of the claimed offense.

The charging instrument may be in the form of a traffic ticket (known as a complaint) issued by a police officer. The state may alternatively make the charge by bringing an “information”, a document filed by or on behalf of the state’s attorney. Or the charge may come through a grand jury indictment.

In all cases, the charge must be filed with the circuit clerk within a limited period of time after the incident date alleged in the information, indictment or complaint. For a misdemeanor DUI, that time period, which is known at the statute of limitations, is 18 moths. For a felony, it is 3 years. 720 ILCS 5/3-5
If a charge is filed within the above time frames, the statute of limitations is no longer a defense available to the accused (defendant). There may or may not be other defenses but not the statute of limitations.

Perhaps a charge is filed against you but takes a long time to resolve. Here the applicable time limit is the speedy trial act. 725 ILCS 5/103-5 In Illinois state court, if you are in custody (jail) and file a proper speedy trial demand, you must be brought to trial within 120 days. If you are not in custody, the state has 160 days to bring you to trial.

The tricky part of what seems like simple math is that any delay in bringing the defendant to trial that is attributable to the defendant does not count. So if you fail to show up for your trial date and the case is set to a later date, that delay does not count towards the speedy trial time. Or if you or your lawyer requests a continuance, or if you and the state agree to continue the case, the delay counts against you, not the state.

If the state requires a continuance, the delay counts in your favor, although if the state can present good cause for the delay (such as a witness that suddenly becomes unavailable), the judge may give additional time. People v. Exson, 896 N.E.2d 844, 384 Ill. App.3d 794 (1st Dist. 2008) A delay that works against the state is if the court system is not prepared, such as no available judges or jurors or courtrooms.

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In an Illinois arrest for DUI (Driving under the Influence), law enforcement is entitled to ask you to take a breath or blood test to determine your blood alcohol contents (BAC). 625 ILCS 5/11-501.2 The officer, not the motorist, is entitled to determine which test to offer. Refusing one type of test is considered a refusal of all tests. People v. Kaegebein, 137 Ill. App. 3d 837, 92 Ill. Dec. 656, 485 N.E.2d 467 (2 Dist. 1985); People v. Shaffer, 261 Ill. App. 3d 304, 199 Ill. Dec. 431, 634 N.E.2d 31 (3 Dist. 1994).

A breath or blood test is known as a “chemical test”. Another test the police are entitled to ask you to take is the preliminary breath test screening (PBT). 625 ILCS 5/11-501.5
Before a police officer can initiate a DUI arrest in Illinois, he must have probable cause to believe you have operated a motor vehicle while under the influence of alcohol. The officer may base his probable cause on general observations such as an odor of alcohol, bloodshot eyes, slurred speech and difficulty locating identification documents and insurance information.

The officer may also employ standardized field sobriety tests, typically the horizontal gaze nystagmus, the walk-and-turn and the one-legged stand. The officer may also use the PBT to help establish probable cause. However, because the PBT is not a certified breath test instrument, the results cannot be used in a DUI prosecution. 625 ILCS 5/11-501.5
A blood test can be used in two different ways. It may be the basis for imposing a driver’s license suspension. The blood test may also be used as tool to convict of DUI, which is the criminal case.

On the 46th day after you submit to a chemical test that shows a BAC of .08 or more, your driver’s license is subject to a suspension for a period of 6 months if you have not had a DUI arrest in the previous 5 years and 12 months if you have. Upon refusing to take a test, you face a suspension of one year, or three years if it’s been fewer than five years since your prior offense.

A suspension is a temporary invalidation of your driver’s license. When the suspension ends, your license becomes valid again, unless it is invalid for some other reason.

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