Articles Posted in DUI

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. Continue reading →

A recent report refers to a driver who was involved in a fatal crash where he was allegedly drunk but was not at fault and still charged with a felony.  This can make sense only with an understanding of Illinois DUI law. “DUI” refers to Driving Under the Influence.

The DUI law in Illinois is part of the Illinois Vehicle, specifically 625 ILCS 5/11-501.  Within it are six different categories of DUI.

One category is DUI with a blood alcohol content (BAL) of .08 percent or greater. Illinois law (identical to the other 49 states due to federal laws that take away highway funds from any state that does not have .08) states that if upon measuring a given amount of your blood, either directly or inferentially through your breath, it contains .08 percent or more of alcohol, you are considered to be driving illegally, regardless of your actual or perceived state of impairment. This is known as the “per se” law.

A DUI prosecution can occur even without a BAL or a BAL under .08.  This would be known as an “affected by” case.  In other words, evidence beyond the BAL demonstrates that your driving was “affected by” alcohol consumption.

Such evidence gathering would be begin with the officer’s observations of your driving skills, as well as how you handle the initial stop (do you pull over promptly, do you pull over safely, etc).   Continue reading →

In Illinois, DUI means Driving Under the Influence.  For instance, under 625 ILCS 5/11-501, it is illegal to drive under the influence of alcohol. It is illegal to drive under the influence of any illegal drug, including marijuana.

Although it is legal to drive while using a prescription medication that can affect your mind, it is illegal to drive if the medication so alters your mind that you cannot think and act with ordinary care while operating a motor vehicle.  It is also illegal to drive under the influence of any intoxicant (“huffing”).

Finally, it is illegal to drive if the percentage of alcohol in your bloodstream is .08 or higher, because there are scientific studies that suggest anybody with a blood alcohol ratio of at least .08 suffers from impaired driving. This is known as the “per se” law, meaning that the existence of that blood alcohol level, standing alone, is sufficient to prove a DUI and also to support a statutory summary suspension (SSS). Continue reading →

Those who are arrested for DUI in Illinois are subject to detention until a cash bond is posted. The purpose of the bond is to ensure the defendant’s return to court. If the defendant fails to appear at any court date, the cash bond will be forfeited and the judge will thereafter issue an arrest warrant.

The sheriff may make an active effort to locate the defendant. Even short of that, the defendant is subject to arrest at any time thereafter in the event he or she has future contact with the police.

Even if the initial purpose of the contact is not related to serving the warrant, if the police run a warrant check upon contact, something they ordinarily do, the defendant will be taken to jail as a result of the active warrant, since a warrant is a court order.  There is no statute of limitations for a warrant and no jurisdictional restriction. In other words, a person who has an active warrant can be hauled to jail at any time and from anywhere in the country until the warrant is served or a judge quashes it.

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As a result of an Illinois Supreme Court ruling, a driver who is charged with driving while suspended based upon a Statutory Summary Suspension that is later rescinded can be convicted of the driving while suspended charge. Defendant David K. Elliott was arrested for Driving Under the Influence (DUI) on August 26, 2009. (625 ILCS 5/11-501)  At that time, the arresting officer also served Defendant with a notice of Statutory Summary Suspension (SSS) of his driver’s license and driving privileges. (625 ILCS 5/11-501.1) In accordance with that same provision, the SSS became effective forty-six days later, or October 11, 2009.

On September 1, 2009, within the ninety days allotted by law in which to do so (625 ILCS 5/2-118.1), the Defendant filed a petition to rescind the SSS.  However, because the SSS is “summary” in nature, the mere filing of the petition to rescind does not stay its commencement.  (People v. Trainor, 156 Ill. App. 3d 918, 109 Ill. Dec. 746, 510 N.E.2d 614 (4 Dist. 1987))

On October 13, 2009, two days after the SSS commenced, the Defendant was arrested for driving on a suspended license in violation of 625 ILCS 5/6-303.  On October 19, 2009, the trial judge entered an order granting the Defendant’s petition to rescind the SSS.

On October 23, 2009, the Illinois Secretary of State entered an order of rescission of the SSS, thereby clearing the suspension off the Defendant’s driving record.  Subsequently, the Defendant moved to dismiss the driving while suspended charge, arguing that because the SSS had been rescinded, the driving while suspended charge lacked a legal basis. Continue reading →

The director of a social service agency in Champaign received court supervision following an arrest for Driving Under the Influence (DUI).  Reports indicated that the probable cause for initially stopping the driver was excessive speed.

It may come as a surprise that speeding is not one of the leading traffic violations that are a precursor to a DUI arrest.  Driving too slowly, a wide turn, and improper lane usage are some of the more common offenses that suggest imparied driving, according to the DUI Detection Guide.

Once the driver was stopped, the officer noticed alcohol on his breath.  At that point, the officer administered the Standardized Field Sobriety Tests (SFST).  This test is made up of three components.

The first is the Horizontal Gaze Nystagmus.  In this test, the person administering the test waves a pen or other objecting in front of the subject in a certain fashion. While doing so, the officer scores the driver’s performance.  The test allegedly can detect alcohol impairment based upon how the eyes react.

Following this is the Walk and Turn. In this test, the subject must follow a very specific set of instructions that only marginally mimic walking.  The test subject must begin by putting the right foot forward and then, while staying on a completely imaginary line, take nine steps down, touch “heel to toe” while walking. On the ninth step, the subject must take a few small steps (not pivot) to the left and walk back. Continue reading →

Britt Miller, age 27, was arrested for Driving Under the Influence (DUI) in Decatur Illinois.  Miller had signed autographs and raffled sports memorabilia during a Super Bowl party at a restaurant located in his hometown of Decatur.  At about 2:00 AM on the night after the Super Bowl, police stopped him, initially for driving the wrong way.  Subsequent observations of the arresting officer led the police to investigate and later arrest Miller for DUI, illegal transportation (open container), no proof of insurance and failure to use a seat belt.

The DUI law is 625 ILCS 5/11-501. In an alcohol-related DUI, a driver may be charged with DUI based upon alcohol-impaired driving or with driving at a blood alcohol level (BAL) above the legal limit.

In all fifty states, the legal limit above which you are assumed to be under the influence of alcohol is .08%. This measures the percent of alcohol in your blood and is by law considered to be too drunk to be driving.  At that level, it becomes the defendant’s burden to show he was not under the influence.

In addition, however, if the state is able to prove that someone was driving with a BAL of at least .08, that in and of itself is proof of DUI, regardless of any evidence the driver presents that he or she was not impaired. This is known as a “per se” law.

Continue reading →

Background:

In the case of People v. Butorac, 2013 IL App (2d) 110953, an Illinois appellate court examined the rights of a boater who was subject to a warrantless entry and search of his boat while he was boating on it.

The Court held that because of the unique nature of boating, a substantially relaxed Fourth Amendment protection allowed conservation officers to search and seize a boat and its operator, following which the operator was arrested for Boating Under the Influence.

Section 2-2(a) of the Boat Registration and Safety Act (“Act”) (625 ILCS 45/2-2(a) (West 2010)) permits law enforcement officers to “board and inspect any boat at any time” in order to investigate if the occupants are complying with the Act.  Timothy Butorac was boating on a portion of the Fox River located between Elgin and St. Charles, in suburban Chicago Illinois.

Upon making contact with Department of Natural Resources (“DNR”) conservation officers, Butorac was charged with, and eventually convicted of, operating a watercraft while under the influence of alcohol, contrary to 625 ILCS 45/5-16(A)(1)(b) (West 2010).  He appealed, asserting that the Act, as applied to his circumstances, was unconstitutional under the United States and Illinois Constitutions, both of which prohibit “unreasonable searches and seizures”.  In a 2-1 decision, the Illinois Appellate Court, Second District, ruled that it was not and affirmed his conviction.

Facts:

DNR officers stopped the defendant’s boat on the Fox River solely based upon section 2-2(a) of the Act. The defendant was doing nothing suspicious at the time.

At the point where the officers stopped defendant, the river is about 200 yards wide and is surrounded on both ends by two dams, which are approximately 6 ½ miles away from one another. It is one of the more popular boating areas on the Fox River. There are no lane lines or buoy markers.  Continue reading →