Illinois DUI Lawyer Blawg

Driving Under the Influence (DUI) is one of the most commonly charged offenses that Illinois traffic lawyers handle. In Illinois alone, about 50,000 such cases are filed each year.

In order to sustain a charge of DUI, the state must prove that the defendant (the accused) was 1) operating or in actual physical control of a 2) vehicle 3) within the State of Illinois 4) while under the influence of alcohol, or with a blood alcohol content (BAC) of .08 or greater. 625 ILCS 5/11-500. You do not have to be driving at the moment that the police observe you, and while a common indicator of actual physical control includes being behind the wheel of the vehicle with the keys in the ignition, the lack of those factors does not create an automatic defense to a DUI charge. Rather, the determination is made on a case-by-case basis. City of Naperville v. Watson, 175 Ill. 2d 399, 677 N.E.2d 955, 222 Ill. Dec. 421 (1997)

A “vehicle” includes every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title except devices moved by human power. 625 ILCS 5/1-217. This definition excepts bicycles, since they are human-powered. People v. Schaefer, 274 Ill. App. 3d 450, 210 Ill. Dec. 968, 654 N.E.2d 267 (2 Dist. 1995) An ATV and a farm tractor are “vehicles”. People v. Martinez, 296 Ill. App. 3d 330, 694 N.E.2d 1084, 230 Ill. Dec. 806, 1998 WL 229582 (1998)

The DUI laws apply to any driving within the State of Illinois, even to private property. On the other hand, the Statutory Summary Suspension (SSS) laws due not apply to private property People v. Montelongo, 152 Ill. App. 3d 518, 504 N.E.2d 936, 105 Ill. Dec. 651 (1987) but do apply to publicly maintained parking lots. People v. Culbertson, 258 Ill. App. 3d 294, 630 N.E.2d 489, 196 Ill. Dec. 554 (1994) Likewise, if the police observe you driving on a public way in order to access a private lot, the SSS rules apply. People v. Wingren, 167 Ill. App. 3d 313, 521 N.E.2d 130, 118 Ill. Dec. 62 (1988)

To prove that the driving occurred while you were under the influence of alcohol, the state must demonstrate that your ability think and act with ordinary care was impaired from alcohol. A DUI based upon a .08 or higher BAC implies proper calibration and administration of the testing machine.

All of these issues require a judge or jury believing what the police have to say. But what happens if some police are dishonest and/or have an agenda beyond law enforcement?

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If you are charged with Driving Under the Influence (DUI) in Illinois, and it is your first offense, you may be tempted to accept whatever offer the prosecutor makes to you. This may not be a wise choice once you understand the consequences of an Illinois DUI.

You are headed home one evening after stopping for a couple of drinks after work. A peace officer, based upon an anonymous tip from someone in the restaurant you just left that a car matching the description of yours just left the parking lot with a drunk driver behind the wheel, activates his siren and emergency lights and orders you to pull up to the curb.

This very well could be an illegal stop, since the tipster was anonymous and therefore the police had no reason to believe the information the tipster provided was reliable, and since the officer has no reason independent of this anonymous tip to suspect you had committed, or were about to commit, a crime, as required under the United States Supreme Court case known as Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968)

If the initial stop was illegal, then any evidence gathered as a result of the stop is also illegal and cannot be used in court against you. Without this evidence, it would impossible for the police to prove the charges against you.

Blocking illegal evidence from being introduced into a DUI case is known as the “exclusionary rule”. If you plead guilty to the DUI, you give up all your constitutional rights, including your right to assert the exclusionary rule and the right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution.

Change the facts a little and suppose there was no tip and that the officer saw you make a turn without signaling, a perfectly valid basis upon which to stop you. The police cannot just come up and start asking you DUI-related questions after stopping you.

They first must have a reason to believe you may be impaired. Failure to do so would raise questions of “probable cause” to make an arrest. Once again, though, if you plead guilty, you give up your right to raise this defense.

Once the officer has made a determination to investigate you for possible DUI, there is no doubt that he will ask you to take a breath test to determine if your blood alcohol content is .08 or higher, the legal limit in Illinois. 625 ILCS 5/11-501. If you register .08 or higher, or if you elect not to provide a breath sample, the officer will issue you a notice of statutory summary suspension (SSS).

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For an Illinois DUI (Driving Under the Influence) arrest to be legal, the police must first have a valid reason to come into contact with you. Under the “reasonable suspicion” standard of Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968), a police officer may stop a person in a public place for a reasonable period of time if the officer reasonably infers that the person committed, is committing or is about to commit, an offense, including traffic offenses. (Codified in Illinois at 725 ILCS 5/107-14)

There are exceptions to the reasonable suspicion requirement. For one, if the member of the public engages in a voluntary encounter with the officer, the person has given up his Fourth Amendment privacy rights. Another exception to the reasonable suspicion requirements is the “community caretaking” function. This could include assisting a person whose vehicle is broken down or who appears to be in physical distress. People v. McDonough, 239 Ill. 2d 260 (2010).

Random license plate checks are another exception to the reasonable suspicion requirement. One other example of a valid stop without reasonable suspicion involves roadblocks, provided that certain criteria are met.

However, the police may not act based upon a “mere hunch” of criminal activity. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996). Therefore, a stop based upon a ‘suspicious vehicle”, or a vehicle leaving a closed business parking lot, or a car parking in a no-parking zone, are illegal stops.

In the case of an illegal stop, the defendant should file a motion to suppress (throw out) the evidence gathered from the moment of the illegal stop. While this does not specifically require the judge to “throw out” the case, it in effect forces the prosecutor to dismiss the charges, as the evidence to prove them has been blocked from being brought forward.

A statutory summary suspension (SSS) becomes a factor in most Illinois DUI arrests. The driver is pulled over, the officer suspects he has had too much to drink and he requests a breath test. If the driver agrees and registers above .08, a suspension of his driver’s license will begin automatically on the 46th day following the arrest (625 ILCS 5/11-501.1(h)) unless the suspension is rescinded (thrown out). And if he does not agree to a test, he will be suspended, for a longer period of time than if he had agreed to a test.

The law sets forth specific grounds (reasons) for which a suspension can be rescinded. Those grounds are at 625 ILCS 5/2-118.1 and are as follows:

You were not properly placed under arrest for a DUI offense as evidenced by the issuance of a Uniform Traffic Ticket;
The arresting officer did not have reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence;
The arrest officer did not properly warn you of the consequences of taking or refusing to take a breath or blood test;
You did not refuse to submit to the test;
You took the requested test and had a blood alcohol content of under .08.

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Just about any police officer that receives training in Driving Under the Influence (DUI) investigations has been instructed in the use of the standardized field sobriety tests (SFST). Many are familiar with the concept of SFST from Hollywood productions, usually in the comedy genre.

The video, while humorous, does illustrate the supposed evolution of DUI law. At one time, it was the Wild, Wild West when it came to what SFST were administered and how they were conducted and graded. There was nothing to show that the tests proved anything about whether or not the subject was impaired by alcohol, or how the tests should be administered.

There are two different ways to charge DUI, one being actual impairment and the other being driving with a blood alcohol level (BAL) of .08 or greater, without the need to prove impairment. 625 ILCS 5/11-501(a)(1)(2); 625 ILCS 5/11-501.2 There are driver’s license penalties associated with submitting to a breath or blood tests and registering over .08, or refusing to submit. In addition, the results of the test, or a refusal to agree to provide the tests, are admissible in the DUI prosecution. 625 ILCS 5/11-501.2
The field sobriety tests used in the past included reciting the alphabet, finger-to-nose, walk-and-turn (WAT), counting backwards, Romberg, the one-legged-stand (OLS), a portable breath test (PBT) and the Horizontal Gaze Nystagmus (HGN). The National Highway Traffic Safety Administration (NHTSA) claims it commissioned studies that validated the WAT, OLS and HGN as reliable indicators that someone is likely to have a blood alcohol level of .08 or greater, which is the standard in all 50 states, thanks to federal agencies like NHTSA.

So the tests are not designed to detect actual impairment but rather to assess the likelihood that someone is at or above .08. However, the tests are used when the only charge is actual impairment, in other words, in those case where there is no BAC reading.

Some consider the SFST to be “junk science” or in other words, science bought and paid for my NHTSA. Essentially, the argument goes, NHTSA came up with a theory and then paid someone with a scientific background to validate the theory.

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