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?
There is a general notion that if you are arrested for DUI and ask to submit to testing of your blood or breath, a refusal to test, or testing and having a BAC of .08 or more, leads to an “automatic” driver’s license suspension. This is true unless you are successful in prosecuting a petition to rescind (throw out) the suspension.
You cannot win one of these petitions simply by showing the judge that “you were not drunk” or that law enforcement had no reason to stop you because your weaving was caused when you were trying to change the radio. Instead, the SSS law limits the motorists to very specific reasons.
One of those is that the officer did not have “reasonable grounds” to believe you were under the influence. “Reasonable grounds” requires a lot less proof than does proving you were in fact under the influence. An officer will make typically observations such as strong odor of alcohol, bloodshot, watery eyes, slurred speech and failing to pass the standardized field sobriety tests (SFST).
That is usually enough. But in a Springfield DUI arrest, the videotape that the dash-cam made was sharply at odds with the testimony of the Sangamon County Sheriff’s Deputy and with what he wrote in his report. The judge was left with the rather easy choice of believing his own eyes or believing the officer. As result, the SSS was rescinded.
This “cowboy” cop has also worked in cahoots with another corrupt cop who apparently wanted to play cupid for his police officer friend. The expected boon to law enforcement that many predicted upon the widespread use of video technology has not always come to pass.