Articles Posted in DUI

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 →

The Illinois court system consists of three layers. The first is the trial court, which is situated in the downtown area of all of Illinois’ 102 counties.

A single judge presides over a trial. In most cases, including Illinois DUI cases, a jury trial is available.

In that instance, the judge’s job is to rule what evidence the jury will and will not be allowed to hear and to instruct the jury on what the law is. The jury then decides how the facts as the jurors interpret them will be applied to the law.

A trial without a jury is known as a “bench trial”.  The judge (who sits on the bench) decides all questions of law and of fact.

Cases may not even reach the trial stage. In DUI cases, the defendant may attempt to suppress (throw out) evidence the state wishes to use against him or her on that basis that it was obtained in contravention of the Fourth Amendment of the United States Constitution. Continue reading →

Mother’s Against Drunk Drivers (MADD) is an organization that began as a grassroots effort to change DUI laws. It is now a lobbying group that relies upon free publicity, intimidation of judges and prosecutors and political favoritism to get its way.
On an annual basis, it bestows various awards to recognize police agencies, politicians and others who bend to its will. It has awarded the State of Illinois “Five Stars” for its DUI laws and practices.

The first “star” is that for requiring breath alcohol ignition interlocks for all convicted drunk drivers. In fact, that is not the law in Illinois in all but a few situations.
Anyone who is convicted of at least two DUI offenses must have an interlock for at least 365 consecutive days after receiving authorization to drive. Because the driver has been convicted of DUI, that authorization must come through a formal hearing with the Illinois Secretary of State. 625 ILCS 5/6-208

At such a hearing, the offender must prove that he or she has resolved the alcohol or other drug problem that led to multiple DUI convictions. This is the only situation in which the driver must have an interlock for 365 days regardless of whether the Secretary of State grants full driving privileges or a restricted driving permit (RDP).

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Illinois has joined a few other states in adopting a law that allows for medicinal use of marijuana. It is known as the Compassionate Use of Medical Cannabis Pilot Program Act. Public Act 98-0122 It is a “pilot program” in that if lawmakers do not renew the program, it automatically expires four years from its January 1, 2014 effective date.

In order to qualify for the program, a patient must be under a doctor’s care for one of thirty-three specified medical conditions for which the doctor certifies marijuana is an effective therapy. Upon being so qualified, the patient may then obtain a certificate from the Illinois Department of Public Health to become a legal medical marijuana patient.

Registered patients may not be arrested or prosecuted for criminal penalties as long as they are following the mandates of the law. Nor can it be used against them in child custody disputes, in renting property or in school or employment.

In general, doctors may authorize up to 2.5 ounces of marijuana every two weeks. But this does not mean it is legally to drive high even if you have a marijuana permit.

The Illinois DUI law for medical marijuana differs from standard DUI law. This applies to both the criminal penalties and driver’s license consequences.

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In some states, for instance, Vermont, a refusal to submit to a breath test can in and of itself be a crime in addition to the separate crime of Driving Under the Influence (DUI). At the present time, in Illinois, the rules on refusal are different from those in Vermont and some other states.

A DUI arrest begins when a driver has an encounter with law enforcement. The officer might see what he believes to be criminal behavior, including something as basic as a traffic code violation. Or perhaps a driver is slumped behind the wheel of the car being operated, or the officer is otherwise performing a “community caretaking” function.

Sometimes the stop involves an anonymous tip of impaired driving made by a citizen. It could be another driver, a pedestrian or the guy serving food at the drive up window. As long as the tipster is shown to be a “reliable source”, a stop in this circumstance does not violate the United States Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures.

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While the benefits to public safety are questionable, the industry that provides Interlock Ignition devices is no doubt thrilled that the federal government has proposed mandatory use of their machines even for first time DUI offenders. The National Highway Traffic Safety Administration (NHTSA) is probably the most influential voice in the nation as far as DUI arrests and prosecutions are concerned.

For instance, it was through NHTSA’s efforts that all 50 states have adopted a minimum drinking age of 21 years, a blood alcohol level (BAL) of .08 for all drivers and the requirement of a Statutory Summary Suspension (SSS) upon being arrested for DUI.

Under prior Illinois procedures, a driver who was suspected of DUI could be asked to take a chemical test (either breath or blood) to determine the driver’s BAL, if the officer suspected the driver was impaired from alcohol. In earlier days, the driver could refuse the test without any penalty either criminally or against the accused’s driver’s license or driving privileges.

Illinois then adopted the so-called “implied consent” concept. This means that anyone who is issued an Illinois driver’s license “consents” to submit to a chemical test if a police officer has grounds to believe the driver may be driving while impaired from alcohol. This of course is what is known as a “legal fiction” as “implied” by definition means pretend.

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If you are arrested in Illinois for Driving Under the Influence (DUI) and are not dead, unconscious or seriously injured, the officer will ask you to perform what are known as Standardized Field Sobriety Tests (SFST). Following these tests, the officer will ask you to take a Preliminary Breath Test (PBT).

The results of the PBT are not “official” and cannot be used against you to prove your intoxication. However, those results, along with the SFST, will provide the police with the grounds to arrest you for DUI. Following the arrest, the officer will ask you to take a different type of breath test, the results of which can have specific criminal and driver’s license consequences.

The PBT is administered at the arrest scene by use of a hand held device that gives an estimate of your blood alcohol level, or BAL. 625 ILCS 5/11-501.5 Normally the official breath test is given at the police station with a desktop device, although there are a few on-sight devices that are official, as they are properly certified as being accurate. However, those can only be administered by a qualified technician and only after you have been placed under arrest for DUI, whereas the PBT is given prior to your arrest.

Another difference between the PBT and the official test is that, as is the case with the SFST, there is no penalty to the driver for refusing to take the SFST or the PBT. On the other hand, if you take the PBT but refuse the official test, you will be written down as a refusal.

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The State of Illinois has a law that prohibits the operation of a motor vehicle anywhere in Illinois while under the influence of alcohol, other drugs and intoxicants. This Illinois DUI law currently applies only to land vehicles other than snowmobiles and bicycles. 625 ILCS 5/1-217

It is necessary to understand that a DUI arrest involves two different categories of consequences. A DUI conviction can result in criminal penalties.

Criminal penalties involve anything that deprives a person of life, liberty or property. In essence, if a DUI conviction can lead to fines, penalties or incarceration, it is a criminal offense in which the prosecutor must prove the accused is guilty beyond a reasonable doubt. Even court supervision, while not exposing an accused to jail, can result in fines and other monetary penalties.

A conviction for DUI will cause a revocation (nullification) of your driver’s license. Having it restored requires you to prove to the Secretary of State at a hearing that you will not drive drunk in the future. It’s more complicated than it appears but the process examines whether or not you can be a “safe and responsible driver”.

A “suspension” is a less severe form of driver’s license sanction. A suspension puts your driver’s license on hold temporarily. As long as your license is otherwise valid, you pay a fee at the end of the suspension and your license is returned to you without a hearing.

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As far as Illinois DUI law is concerned, there are three general categories of offenses. The first and most common is DUI alcohol.

Alcohol-related DUI can arise from impaired driving evidence due to alcohol. That would come about by the police officer’s observations of your driving, your conduct during the arrest and your performance on what is known as Standardized Field Sobriety Tests (SFTS). 625 ILCS 5/11-501
DUI alcohol can also apply if a driver provides a chemical test that shows a blood alcohol level (BAL) of .08% or greater. This is known as “per se” (Latin for automatic) DUI. In a per se case, the state does not have to prove actual impairment but merely operation of a motor vehicle while having a BAL of .08% or higher.

The per se law can cause a great temptation for a driver to refuse to submit to testing. Since in Illinois a refusal is not a criminal offense, that can in some instances be a good strategy if you think you may fail.

The downsides of refusing are two. First of all, the judge will allow the prosecutor to argue to the jury that your refusal is evidence that you were afraid you were drunk and that is why you refused.

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When a driver in Illinois has an encounter with law enforcement while the driver is in actual physical control of a motor vehicle as required by Illinois DUI (Driving Under the influence) law (625 ILCS 5/11-501), the officer may be looking for signs of DUI impairment. This can begin with the initial driving behavior. Common markers of alcohol-related driving behavior include driving too slowly, wide turns and weaving.

This will provide the reasonable suspicion the officer needs to stop the driver. Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968) The police will also observe the manner in which the driver executes the stop. This includes matters such as how quickly the driver notices the flashing lights and slows, how the driver performs while engaged in pulling over (using turn signal for instance) and how effectively the driver stops and parks the vehicle.

Next, the officer will have an opportunity to observe the driver face-to-face. Signs of impairment would be slurred, thick tongued speech, bloodshot and glassy eyes, heavy eyelids and an odor of alcohol. An officer will also note any difficulty the driver encounters in retrieving the driver’s license, insurance card and registration.

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