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Rare appeals court victory for DUI offender

A vast majority of cases charging driving under the influence, or DUI, end up with a plea to a DUI conviction, court supervision, a reduced charge such as reckless driving or a dismissal.  There is a common misconception that hiring a lawyer automatically results in a “better deal”.

The reality is that cases are won or lost in two primary aspects of the case.  The first involves procedural irregularities, or what many unfortunately refer to as “technicalities”.  Good DUI lawyers know that “technicalities” are actually violations of Constitutional or other legal provisions.

The entire purpose of a DUI prosecution is to prove a claim that the defendant (the accused driver) failed to follow the law. In the United States, the prosecutor bears the burden of proof beyond a reasonable doubt. It only seems fair that the party to a case who has the burden of proving its claim that the other side did not follow the law should itself be required to follow the law.

If the state does not follow the law and if there are no consequences for its failure to do so, then the state has no incentive to comply with the Constitution and other laws the next time a situation arises. Therefore, the only proper remedy is to exclude the evidence that is gathered in violation of the driver’s Constitutional rights or contrary to established legal procedures for collecting and presenting evidence.So for instance, the law says that before the police may administer a breath test, there must be a 20 minute observation period. 625 ILCS 5/11-501.2 and 20 Ill. Adm.Code § 1286.310  If the police fail to follow this very straightforward procedure, the breath test results will be suppressed, or thrown out.  Otherwise, the police will have little incentive to follow procedures in the future, at their only goal is to support the arrests they make with convictions, not to protect the defendant’s rights.

Similarly, due to the exclusionary rule, if the police gather evidence in violation of your rights under the Fourth, Fifth or Sixth Amendments to the United States Constitution, any evidence illegally obtained will be excluded from the case. (Mapp v. Ohio, 367 U.S. 643 (1961)) This will often times leave the prosecutor without sufficient evidence to prove its case, resulting in dismissal of the charges.

At other times, the DUI case is compromised because of lack of substantive evidence. In other words, the state may have followed all the procedural requirements under the Constitution and applicable statutes, but the case itself may have weaknesses.

Perhaps the officer failed to collect critical evidence, or failed to document claims he makes in his reports. As often as not, the video of the DUI arrest helps the defendant as much as it hurts him. It is not unusual for the police report to “read” worse for the driver than the video “shows”.

The case may be so weak that the prosecutor agrees to dismiss-a judge cannot, under Illinois  law, dismiss a case for lack of evidence unless there has been an actual trial.  In other situations, the case is close and both sides agree that the risks of trial outweigh the benefits of an amicable resolution of the charges, such as a reckless driving “bust down”.

Sometimes the sides are unable to agree and the case goes to trial, either before a judge alone (“bench” trial) or a judge and jury. If the state loses, the case is over due to the Double Jeopardy Clause (you cannot try a defendant twice on the same charge).  If the defendant loses, he or she has an automatic right to appeal. Those appeals are rarely successful.

However, rarely does not mean never. The Wyoming Supreme Court recently tossed a DUI conviction because the the search warrant the police obtained in order to draw blood from the driver, as required by Missouri v. McNeely, was defective.

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