Articles Posted in DUI

Carlton Fisk was one of the great major league baseball catchers to ever suit up. He played for the Boston Red Sox from 1969 to 1980 and for the Chicago White Sox until he retired in 1993.

In the 1975 World Series, cameras caught Fisk in probably the most iconic moment ever captured live in sports history, as he “English-ed’ his home run ball fair in the early morning hours of Game 6 of the 1975 World Series at Boston. Cameras then captured him jumping for joy, earning NBC an Emmy award.

Fisk has now been arrested in Illinois for a DUI. Early news reports indicate Fisk was passed out in a cornfield near New Lennox, seated in his truck, engine running, tire flat.

Police found an open vodka bottle in the passenger seat. Police charged Fisk with illegal transportation of alcohol (the open vodka bottle), contrary to 625 ILCS 5/11-502, as well as for Driving Under the Influence of Alcohol (DUI) and improper lane usage (“weaving”).

After police awakened him, Fisk agreed to go to the hospital. However, once at the hospital, Fisk would not submit to a blood draw at the officer’s request.

In DUI cases involving an accident with injuries, there are typically two blood draws involved. When a person is transported to the hospital, the emergency room will normally draw blood in the normal course of treatment. This draw is important to the medical personnel treating the patient, as information about the contents and quantify of substances in a person’s blood stream is important in determining the diagnosis and treatment of any injuries
This draw is known as the “medical draw” because the blood is drawn for purposes of treatment. The results of the medical draw are admissible in a prosecution for DUI. 625 ILCS 5/11-501.4.

Such information can be used to prove actual impairment (drunk driving). The law presumes that someone with a blood alcohol level (BAL) of .08 or higher is under the influence, presumes that a BAL of .05 or less is evidence you are not impaired and creates no presumption when a BAL is greater than .05 but less than .08. Presumptions can be overcome with contrary evidence but the party with a favorable presumption has a leg up. 625 ILCS 5/11-501.2
The medical draw may also be used to demonstrate that the accused either was or was not guilty of a “per se” violation of the DUI law. Under the “per se” analysis, the state does not have to prove that the defendant was actually impaired. The mere act of driving with a BAL of .08 or above is, in and of itself, illegally, even though there may be absolutely no evidence of impairment, such as unsteady balance, blood shot eyes, a strong odor of alcohol and bad driving indicative of impairment, such as weaving. 625 ILCS 5/11-501(a)(1)

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Someone who is arrested for Driving Under the Influence (DUI) may have questions about how long the DUI can be used against him. This issue can arise in several contexts but should not be confused with similar but different situations.

A statute of limitations as a defense to a DUI charge is limited to one specific situation. The state (police and or prosecutor) must, in charging any criminal offense, including DUI, allege in a written instrument the date of the claimed offense.

The charging instrument may be in the form of a traffic ticket (known as a complaint) issued by a police officer. The state may alternatively make the charge by bringing an “information”, a document filed by or on behalf of the state’s attorney. Or the charge may come through a grand jury indictment.

In all cases, the charge must be filed with the circuit clerk within a limited period of time after the incident date alleged in the information, indictment or complaint. For a misdemeanor DUI, that time period, which is known at the statute of limitations, is 18 moths. For a felony, it is 3 years. 720 ILCS 5/3-5
If a charge is filed within the above time frames, the statute of limitations is no longer a defense available to the accused (defendant). There may or may not be other defenses but not the statute of limitations.

Perhaps a charge is filed against you but takes a long time to resolve. Here the applicable time limit is the speedy trial act. 725 ILCS 5/103-5 In Illinois state court, if you are in custody (jail) and file a proper speedy trial demand, you must be brought to trial within 120 days. If you are not in custody, the state has 160 days to bring you to trial.

The tricky part of what seems like simple math is that any delay in bringing the defendant to trial that is attributable to the defendant does not count. So if you fail to show up for your trial date and the case is set to a later date, that delay does not count towards the speedy trial time. Or if you or your lawyer requests a continuance, or if you and the state agree to continue the case, the delay counts against you, not the state.

If the state requires a continuance, the delay counts in your favor, although if the state can present good cause for the delay (such as a witness that suddenly becomes unavailable), the judge may give additional time. People v. Exson, 896 N.E.2d 844, 384 Ill. App.3d 794 (1st Dist. 2008) A delay that works against the state is if the court system is not prepared, such as no available judges or jurors or courtrooms.

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In an Illinois arrest for DUI (Driving under the Influence), law enforcement is entitled to ask you to take a breath or blood test to determine your blood alcohol contents (BAC). 625 ILCS 5/11-501.2 The officer, not the motorist, is entitled to determine which test to offer. Refusing one type of test is considered a refusal of all tests. People v. Kaegebein, 137 Ill. App. 3d 837, 92 Ill. Dec. 656, 485 N.E.2d 467 (2 Dist. 1985); People v. Shaffer, 261 Ill. App. 3d 304, 199 Ill. Dec. 431, 634 N.E.2d 31 (3 Dist. 1994).

A breath or blood test is known as a “chemical test”. Another test the police are entitled to ask you to take is the preliminary breath test screening (PBT). 625 ILCS 5/11-501.5
Before a police officer can initiate a DUI arrest in Illinois, he must have probable cause to believe you have operated a motor vehicle while under the influence of alcohol. The officer may base his probable cause on general observations such as an odor of alcohol, bloodshot eyes, slurred speech and difficulty locating identification documents and insurance information.

The officer may also employ standardized field sobriety tests, typically the horizontal gaze nystagmus, the walk-and-turn and the one-legged stand. The officer may also use the PBT to help establish probable cause. However, because the PBT is not a certified breath test instrument, the results cannot be used in a DUI prosecution. 625 ILCS 5/11-501.5
A blood test can be used in two different ways. It may be the basis for imposing a driver’s license suspension. The blood test may also be used as tool to convict of DUI, which is the criminal case.

On the 46th day after you submit to a chemical test that shows a BAC of .08 or more, your driver’s license is subject to a suspension for a period of 6 months if you have not had a DUI arrest in the previous 5 years and 12 months if you have. Upon refusing to take a test, you face a suspension of one year, or three years if it’s been fewer than five years since your prior offense.

A suspension is a temporary invalidation of your driver’s license. When the suspension ends, your license becomes valid again, unless it is invalid for some other reason.

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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?

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If you are charged with Driving Under the Influence (DUI) in Illinois, and it is your first offense, you may be tempted to accept whatever offer the prosecutor makes to you. This may not be a wise choice once you understand the consequences of an Illinois DUI.

You are headed home one evening after stopping for a couple of drinks after work. A peace officer, based upon an anonymous tip from someone in the restaurant you just left that a car matching the description of yours just left the parking lot with a drunk driver behind the wheel, activates his siren and emergency lights and orders you to pull up to the curb.

This very well could be an illegal stop, since the tipster was anonymous and therefore the police had no reason to believe the information the tipster provided was reliable, and since the officer has no reason independent of this anonymous tip to suspect you had committed, or were about to commit, a crime, as required under the United States Supreme Court case known as Terry v. Ohio 392 US 1, 20 L.Ed. 2d 889 (1968)

If the initial stop was illegal, then any evidence gathered as a result of the stop is also illegal and cannot be used in court against you. Without this evidence, it would impossible for the police to prove the charges against you.

Blocking illegal evidence from being introduced into a DUI case is known as the “exclusionary rule”. If you plead guilty to the DUI, you give up all your constitutional rights, including your right to assert the exclusionary rule and the right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution.

Change the facts a little and suppose there was no tip and that the officer saw you make a turn without signaling, a perfectly valid basis upon which to stop you. The police cannot just come up and start asking you DUI-related questions after stopping you.

They first must have a reason to believe you may be impaired. Failure to do so would raise questions of “probable cause” to make an arrest. Once again, though, if you plead guilty, you give up your right to raise this defense.

Once the officer has made a determination to investigate you for possible DUI, there is no doubt that he will ask you to take a breath test to determine if your blood alcohol content is .08 or higher, the legal limit in Illinois. 625 ILCS 5/11-501. If you register .08 or higher, or if you elect not to provide a breath sample, the officer will issue you a notice of statutory summary suspension (SSS).

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For an Illinois DUI (Driving Under the Influence) arrest to be legal, the police must first have a valid reason to come into contact with you. Under the “reasonable suspicion” standard of Terry v. Ohio, 392 US 1, 20 L.Ed. 2d 889 (1968), a police officer may stop a person in a public place for a reasonable period of time if the officer reasonably infers that the person committed, is committing or is about to commit, an offense, including traffic offenses. (Codified in Illinois at 725 ILCS 5/107-14)

There are exceptions to the reasonable suspicion requirement. For one, if the member of the public engages in a voluntary encounter with the officer, the person has given up his Fourth Amendment privacy rights. Another exception to the reasonable suspicion requirements is the “community caretaking” function. This could include assisting a person whose vehicle is broken down or who appears to be in physical distress. People v. McDonough, 239 Ill. 2d 260 (2010).

Random license plate checks are another exception to the reasonable suspicion requirement. One other example of a valid stop without reasonable suspicion involves roadblocks, provided that certain criteria are met.

However, the police may not act based upon a “mere hunch” of criminal activity. People v. Drewes, 278 Ill. App. 3d 768, 215 Ill. Dec. 445 (3d. Dist. 1996). Therefore, a stop based upon a ‘suspicious vehicle”, or a vehicle leaving a closed business parking lot, or a car parking in a no-parking zone, are illegal stops.

In the case of an illegal stop, the defendant should file a motion to suppress (throw out) the evidence gathered from the moment of the illegal stop. While this does not specifically require the judge to “throw out” the case, it in effect forces the prosecutor to dismiss the charges, as the evidence to prove them has been blocked from being brought forward.

A statutory summary suspension (SSS) becomes a factor in most Illinois DUI arrests. The driver is pulled over, the officer suspects he has had too much to drink and he requests a breath test. If the driver agrees and registers above .08, a suspension of his driver’s license will begin automatically on the 46th day following the arrest (625 ILCS 5/11-501.1(h)) unless the suspension is rescinded (thrown out). And if he does not agree to a test, he will be suspended, for a longer period of time than if he had agreed to a test.

The law sets forth specific grounds (reasons) for which a suspension can be rescinded. Those grounds are at 625 ILCS 5/2-118.1 and are as follows:

You were not properly placed under arrest for a DUI offense as evidenced by the issuance of a Uniform Traffic Ticket;
The arresting officer did not have reasonable grounds to believe you were driving or in actual physical control of a motor vehicle while under the influence;
The arrest officer did not properly warn you of the consequences of taking or refusing to take a breath or blood test;
You did not refuse to submit to the test;
You took the requested test and had a blood alcohol content of under .08.

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Just about any police officer that receives training in Driving Under the Influence (DUI) investigations has been instructed in the use of the standardized field sobriety tests (SFST). Many are familiar with the concept of SFST from Hollywood productions, usually in the comedy genre.

The video, while humorous, does illustrate the supposed evolution of DUI law. At one time, it was the Wild, Wild West when it came to what SFST were administered and how they were conducted and graded. There was nothing to show that the tests proved anything about whether or not the subject was impaired by alcohol, or how the tests should be administered.

There are two different ways to charge DUI, one being actual impairment and the other being driving with a blood alcohol level (BAL) of .08 or greater, without the need to prove impairment. 625 ILCS 5/11-501(a)(1)(2); 625 ILCS 5/11-501.2 There are driver’s license penalties associated with submitting to a breath or blood tests and registering over .08, or refusing to submit. In addition, the results of the test, or a refusal to agree to provide the tests, are admissible in the DUI prosecution. 625 ILCS 5/11-501.2
The field sobriety tests used in the past included reciting the alphabet, finger-to-nose, walk-and-turn (WAT), counting backwards, Romberg, the one-legged-stand (OLS), a portable breath test (PBT) and the Horizontal Gaze Nystagmus (HGN). The National Highway Traffic Safety Administration (NHTSA) claims it commissioned studies that validated the WAT, OLS and HGN as reliable indicators that someone is likely to have a blood alcohol level of .08 or greater, which is the standard in all 50 states, thanks to federal agencies like NHTSA.

So the tests are not designed to detect actual impairment but rather to assess the likelihood that someone is at or above .08. However, the tests are used when the only charge is actual impairment, in other words, in those case where there is no BAC reading.

Some consider the SFST to be “junk science” or in other words, science bought and paid for my NHTSA. Essentially, the argument goes, NHTSA came up with a theory and then paid someone with a scientific background to validate the theory.

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