Articles Posted in DUI

The United States Supreme Court, in a case known as McNeely v. Missouri, issued an important decision related to Driving Under the Influence, or DUI, and search warrants. The Court decided that in most cases, before the police can force a DUI suspect to give blood, they must obtain a search warrant.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. It further states that no search warrant shall issue without probable cause.

In essence, the government cannot search you or your home without a warrant issued by a judge. The judge should not issue the warrant unless the police provide evidence to the judge that there is some good reason to approve the warrant and authorize a search.

There are many exceptions to the warrant requirement. A number of the exceptions apply to motor vehicle stops, including DUI arrests.

Exceptions to the warrant requirement include searches made during an arrest (police can pat you down for weapons in the process of an arrest) and searches in which the police are already in legitimate contact with you and observe something “in plain view” (stopped for a traffic ticket; during the stop, the police see an open container on the floorboard). In addition, searches done with your consent (do you mind if I search your trunk? No go right ahead) and “stop and frisk” searches (officer observes what appears to be a street corner drug transaction and approaches the suspect to question him and then pats him down for weapons) do not require a warrant.

Another exception applies to emergency situations, where the evidence can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued (drugs flushed down the toilet). This exception was pertinent to the McNeely decision.

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The charge of driving under the influence, or DUI, carries with it criminal penalties as well as consequences on a driver’s license. While a first DUI is serious and a second is more so, it only gets worse when you have a prior conviction for reckless homicide in connection with the operation of a motor vehicle on your record.

For years, a DUI that resulted in death was charged under the Criminal Code (720 ILCS 5/9-3) as reckless homicide in the operation of a motor vehicle. The law as written assumed that if you were under the influence of alcohol and you killed someone, your conduct was reckless.

In People v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 784, 271 Ill. Dec. 230 (2003), the Illinois Supreme Court held that this presumption violated the constitution by improperly shifting the burden to the defendant of proving that he was not guilty. This was the second occasion on which the Supreme Court had ruled the statute was unconstitutional.

In response, the Illinois General Assembly created a new category of DUI offenses known as aggravated DUI. One form of aggravated DUI involves a DUI committed during which one or more people die. 625 ILCS 11-501(d)

Prosecutors in McHenry County Illinois recently charged a driver who had served 12 years in prison for reckless homicide, for which he was currently on parole, with a DUI offense. The allegation, as yet unproven, is that the driver was under the influence of prescription medication.

The DUI law has six categories of driving under the influence. The first is driving with an alcohol concentration of .08 or greater. Category number two is driving under the influence (used when there is no evidence of an alcohol concentration).

A third category of DUI is driving under the influence of intoxicating compounds to an extent that it renders you incapable of driving safely. If they influence your driving, you may be charged with DUI. Examples would be sniffing glue or “huffing” gases.

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In many instances, an Illinois driving under the influence, or DUI is won or lost based upon the trier of fact (the judge or jury) receiving the results of a breath test. By way of background, there are two types of breath tests that a driver suspected of driving under the influence (DUI) will face.

At the roadside, the police will first administer a series of standardized field sobriety tests. These are physical tests that purportedly correlate with a blood alcohol content (BAC) of at least .08.

A BAC of .08 is the minimum level at which the law assumes you are under the influence of alcohol. 625 ILCS 5/11-501.2 This figure represents how much alcohol has entered your bloodstream, the point at which alcohol negatively effects those parts of the brain that regulate skills related to driving, such as vision, judgment and reaction time.

Furthermore, at the roadside, the officer will also ask you to blow into a handheld device. This is known as a preliminary breath test (PBT). The results of this test are not evidence of your BAC but are merely a tool to help the police determine whether to arrest you for DUI. 625 ILCS 5/11-501.5
Following the arrest for DUI, the police will ask you to submit to a chemical test to determine your BAC. The chemical test is the “official” test, as the results of it are admissible to prove your BAC, Unlike the field sobriety tests, the chemical tests are considered direct evidence of your blood alcohol content.

The chemical test is usually administered at the police station, although there are certain testing machines that are certified for use in the field. Unlike the PBT devices, these machines, as well as any machines that produce “official” results, are subject to certain certification requirements. Likewise, the operator of the machines must be certified and the method of administering the tests is also regulated by law. 625 ILCS 5/11-501.2

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In addition to making Driving Under the Influence (DUI) illegal, Illinois DUI law also has a class of offenses known as “aggravated” DUI. 625 ILCS 5/11-501(d) Aggravated DUI is a standard DUI with certain factors that the General Assembly has determined make it “worse” than standard DUI.

Aggravating factors include a third or subsequent DUI “violation”. In most instances, adverse actions under the Illinois Vehicle Code require a conviction. In those situations, other than when dealing with the law pertaining to Commercial Driver’s Licenses (CDLS), supervision is thus not a factor in the equation.

However, in order to receive court supervision, you must admit that you committed the violation. Therefore, since the aggravated DUI law requires only a violation as opposed to a conviction, supervision does count.

Another aggravating factor is that in committing a DUI, the person caused a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another. Someone who has previously been convicted of reckless homicide in the operation of a motor vehicle in which alcohol was a factor, or who was previously convicted of aggravated DUI involving death or an accident that resulted in great bodily harm or permanent disability or disfigurement to another is also guilty of aggravated DUI.

There are also DUI enhancements where the driver was DUI and was involved in an accident while operating in a school speed zone that caused injury to any other person or the DUI driver was in an accident that caused injury to an occupant under the age of 16.

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An Illinois motorist was arrested for DUI in suburban Chicago. Nothing unusual about that but much of the media is in high dudgeon because there is evidence he was traveling 142 MPH.

The defendant lost control of the 2008 Dodge Charger he was operating, struck a curb and flipped and rolled the car. Police came to the scene, and after observing the motorist, suspected he might have been driving under the influence.

He performed standardized field sobriety tests (SFST) which he failed. First among the tests that he was administered was the Horizontal Gaze Nystagmus (HGN).

Based upon what can only loosely be called “science”, an officer waves a pencil or other small object across the driver’s face. Based upon the officer’s subjective observations of how the accused’s eyes “track” the movement of the object, the officer “scores” the results and decides whether the driver “passed”.

Even if the officer performs every single step of the multi-step process perfectly correctly and even if he is 100% accurate in interpreting the results, the test is less than 70% accurate in estimating if the test subject’s BAC is above the legal driving limit of .08. Any mistakes in the administration or interpretation of the test can only serve to reduce its accuracy.

And nobody other than the officer has an opportunity to view his observations and interpretations. The judge and jury only see a video in which a policeman is moving a pencil in front of someone’s eyes. Yet this test is the first step in what will no doubt culminate in a DUI arrest.

The second SFST is the walk-and-turn, commonly referred to as “walking a straight line”. But under testing protocol, the straight line is imaginary. Under testing protocol, the slightest deviation from the very strict protocol is scored against you. For instance, if instead of marching on your right foot as you turn around, you pivot, as any normal person would, it is marked against you.

The only person injured in this accident was the fool driver. It was his first offense, which rendered him eligible for court supervision. The judge cannot order jail time if he decides that supervision is an appropriate disposition. While the BAC and the speed were high, this outcome is defensible.

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In the 1980’s, the Federal government began inserting itself into DUI laws. Prior to that time, matters of traffic safety were left to each state. The Federal government strong-armed the states into accepting federal oversight by threatening to withhold highway funds for those states that did not play ball.

The first example of this intrusion into states’ rights was the 55 MPH speed limit on the Interstate. Other laws have led to a nationwide drinking age of twenty-one, to the idea of a mandatory breath test suspension (known in Illinois as a statutory summary suspension) and to uniform blood alcohol level (BAL) requirements.

As of July 2, 1997, the legal BAL limit in Illinois is .08. The legal definition of BAL is 8 grams of alcohol per 100 milliliters of blood or 8 grams of alcohol per 210 liters of breath. 625 ILCS 5/11-501.2

This means you are driving under the influence if the state can prove that at the time you were in actual physical control of a motor vehicle, you had .08 grams of alcohol within 100 milliliters of blood. In the alternative, using certain breath testing devices, your breath can allegedly be converted into a blood alcohol equivalent, the limit being .08 grams of alcohol within 210 liters of breath.

Michigan passed the .08 law with a sunset provision, meaning that unless it is extended, it will go back up to .10. If that happens, MI will lose millions in highway money.

There are two different types of DUI in Illinois. The first is proof of actual impairment (common law DUI). With that type of charge, the state must prove that alcohol reduced your ability to think and act with ordinary care .

In a common law DUI, a reading of at least .08 creates a presumption that you are under the influence. A reading of .05 or less creates a presumption that you were not under the influence. A BAC of less than .08 but greater than .05 creates no presumption in either direction. 625 ILCS 5/11-501.2
Although the .08 reading creates a presumption, that merely means that the jury will be allowed to assume, absent contrary evidence, that the driver was under the influence. However, the driver can argue that even though he was above .08, he was not under the influence.

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A Champaign Illinois police sergeant was arrested for DUI The arrest occurred in nearby Piatt County (Monticello).

The DUI arrest was anything but routine. The cop was weaving across the Interstate so badly that other drivers called the police.

The driver had slurred speech and an odor of alcohol. Thereafter, he was administered a series of Standardized Field Sobriety Tests (SFST)

The first of the three tests administered would have been the Horizontal Gaze Nystagmus (HGN). The examiner administers the test by waving a pencil or other object at different angles across the subject’s face.

He watches for certain movements in the accused’s eyes. He “scores” the test by assessing how well, in his opinion, the subject performs against expected norms. As you can see, the test may not be as reliable or scientific as police claim.

First of all, the test is scored by a person who already suspects the subject is intoxicated. Otherwise, the officer would not be asking the accused to perform the test.

Furthermore, the accused is being measured against a hypothetical “normal” person. This fails to take into account inherent physical differences from one person to the next, differences that do not necessarily translate into proof of intoxication.

If you flip a coin ten times and tails comes up seven times, that does not prove the flip was invalid. It just proves that averages merely represent the expected outcome. Variances in results do not prove that something is amiss.

The second test that the defendant would have performed was the walk-and-turn (WAT). It is just like what it sounds: you walk nine steps, turn around and walk nine steps back from where you came. The officer “scores” your performance.

But you are not just walking. You are walking “heel-to-toe”. You are walking on an imaginary line. You are required to walk with your arms and hands in a certain position, as well as your eyes and head.

As you take each step, you must count aloud. And you are supposed to turn in a specific manner. Not a military turn but “small steps” in the proper direction. And if you begin your steps in either direction on the wrong foot or begin before the cop says “go”, points are taken off.

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Illinois law on Driving Under the Influence (DUI) provides that “A person shall not drive or be in actual physical control of any vehicle within this State while:” [under the influence]. 625 ILCS 5/11-501 There are a number of issues involved in the quoted phrase.

One is the matter of “driving”. The police need not prove that they actually observed you driving. They must simply satisfy a jury beyond a reasonable doubt that you were driving at a time you were under the influence of alcohol. People v. Garnier, 20 Ill. App. 2d 492, 156 N.E.2d 613 (1 Dist. 1959)

This can be established by circumstantial evidence. For instance, if you the police find you in a cornfield in the middle of nowhere and your truck is ten feet away and there are no footprints in the snow, a jury might infer that you were driving. People v. Slinkard, 362 Ill. App. 3d 855, 298 Ill. Dec. 858, 841 N.E.2d 1, (1 Dist. 2006), appeal denied, 219 Ill. 2d 591(2006)

There are numerous cases on the issue of “actual physical control”. in grossly simplified form, it’s the idea of keys in the ignition, engine running. But there is no magic formula for determining whether there is actual physical control. It is a question of fact for the jury to determine. People v. Davis, 205 Ill. App. 3d 431, 150 Ill. Dec. 349, 562 N.E.2d 1152 (1 Dist. 1990)

Another question is whether you can drive drunk on wholly private property? The answer is “no” because the Illinois DUI laws apply “within the State” of Illinois. People v. Erickson, 108 Ill. App. 2d 142, 246 N.E.2d 457 (2 Dist. 1969)

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The focus of efforts in Illinois to reduce offenses for Driving Under the Influence (DUI) has taken three directions. The first is the criminal justice system, which has made DUI a serious crime.

Even a first DUI conviction is a Class-A misdemeanor subject to a fine of as much as $2,500.00 and up to 364 days in county jail, or both a fine and jail. 625 ILCS 5/11-501. A second offense carriers additional penalties and a third offense is a felony.

The law has also created other aggravating factors that pile on additional penalties, mandatory minimums and other “feel good” provisions. Some of the variables include the age of passengers, the severity of the injury, the number of people who perish in a fatal accident, the location of the offense such as a school zone, and other politically appealing scenarios.

The second “hammer” the law applies to DUI matters is directed at driver’s license consequences. The mere fact you are arrested puts you at great risk of suffering a driver’s license suspension.

You are asked to take a breath test. You take the test and if the results are .08 or greater, your driver’s license will be suspended for anywhere from 6 to 12 months. And the results of the breath test reading can be used against you in the criminal prosecution.

You have the option of refusing the test. In that case, the prosecutor will argue that your refusal is “evidence of a guilty mind”, or in other words, if you thought you were sober, you would take the test in order to prove your sobriety.

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In the news is a Springfield firefighter arrested for a third Illinois DUI. With a third DUI, the Captain faces some serious criminal and driver’s license issues.

For the driver’s license issues, you have to have more information beyond the fact this is the third arrest for DUI (Driving Under the Influence). Illinois driver’s license law provides that a person with three DUI convictions will suffer a driver’s license revocation for ten years. 625 ILCS 5/6-208

However, supervision is not a conviction 730 ILCS 5/5-6-1. (d). Therefore, for the purpose of determining how long you are revoked, do not include any DUI supervision dispositions, any DUI dismissals or any DUI tickets that result in a reduction in the charge to something such as reckless driving.

A DUI revocation does not mean you cannot drive for ten years. If you are able to demonstrate that not being able to drive is causing “undue hardship”, you may, after the first year of a revocation, apply for a Restricted Driving Permit (RDP) unless your previous DUI was less than five years ago and your license is suspended under the statutory summary suspension laws.

A statutory summary suspension happens when you are asked to take a breath (or blood) test and refuse to do so, or take the test and register .08 or higher. The suspension for refusing is much longer than for blowing over .08. Those who have a previous arrest less than five years ago cannot apply for an RDP during the suspension. 625 ILCS 5/6-208.1

The consequence of a refusal in that situation is a three year suspension and no driving. Taking the test and failing results in a one year suspension with no driving.

On the other hand, if you have no prior DUI offense within five years, a test over the legal limit results in a suspension for six months. A refusal causes a twelve month suspension.

During all but the first thirty days of the suspension, you are eligible to apply for a Monitoring Device Driving Permit (MDDP). This allows you to drive on an unlimited basis provided you agree to install an Interlock device that monitors your breath alcohol reading when you start your car and periodically while you are driving it.

Thus, for purposes of the revocation, it is not the number of DUI arrests that matters but the number of convictions. In terms of the statutory summary suspension length, the number of arrests or convictions do not matter. It’s how far apart they are and whether or not you took at test at the time of the most recent arrest.

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