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Following the Birchfield ruling, if a person is arrested for suspicion of DUI the arresting officer can only conduct a warrantless blood test on the person if he or she consents to the test, otherwise it constitutes an unreasonable search and seizure in violation of the 4thAmendment of the United States Constitution. The Birchfield ruling has caused a ripple effect throughout the country, as courts continue to analyze how it impacts issues of consent in DUI cases. For example, the Wisconsin Supreme Court recently addressed the issue of whether chemical testing that is conducted after the defendant’s consent is withdrawn constitutes an unreasonable search. If you live in Illinois and are facing DUI charges following a warrantless blood test it is crucial to retain a seasoned Illinois DUI attorney to help you formulate a defense.

Underlying Facts and Ruling

Reportedly, the defendant was arrested for operating her vehicle while under the influence of alcohol. She consented to submit to a blood test but withdrew her consent after the blood was drawn before any chemical testing was performed and demanded that the destruction of her sample. The blood was tested regardless, however. Prior to trial, the defendant filed a motion to suppress the results of her drug test, arguing that the test was an unreasonable search and seizure in violation of her constitutional rights, due to the fact the testing was conducted after she withdrew her consent. The trial court granted the defendant’s motion. The State appealed the trial court’s ruling and on appeal, the appellate court affirmed the trial court’s decision. The State then appealed to the Wisconsin Supreme Court, who reversed the trial court decision.

In issuing its decision, the Wisconsin Supreme Court stated that there was only one search conducted, which was the blood draw to which the defendant consented. The court held that the search ended when the blood draw was completed, and the subsequent testing of the blood did not constitute a second search. Further, the court stated a defendant arrested for driving while intoxicated has no privacy interest in the amount of alcohol in a blood sample. Therefore, the court held that the defendant’s right to be free from unreasonable search and seizure were not violated by the testing of her blood and reversed the trial court ruling.
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With marijuana use becoming increasingly legal, laws have been enacted throughout the country that allows drivers to be prosecuted for DUI based on the levels of THC in their blood. A recent study illustrated that THC levels may not accurately reflect a driver’s level of impairment, however, and deemed the use of THC levels as the standard of impairment as irrational. Illinois is one of many states that imposes a legal limit on a driver’s blood THC levels and allows for the presumption that a driver with a blood THC level over the legal limit is driving under the influence. If you are an Illinois resident charged with a DUI based on your blood THC level, it is in your best interest to engage a knowledgeable Illinois DUI attorney to help you protect your rights.

Study Regarding THC Levels in Drivers’ Blood

The study, which was conducted in Canada, reported that there was no statistically significant relationship between a blood test that was positive for THC and driving behavior that contributed to collisions. The researchers analyzed over 3,000 accidents that resulted in injuries, in which the drivers were tested for the use of marijuana and alcohol. The researchers found that drivers who had a blood THC level of less than 5 nanograms did not pose an increased risk of causing crashes.

While drivers with a blood THC level of 5 nanograms or higher were slightly more likely to be deemed responsible for accidents, the researchers did not find the increase in the likelihood of accidents among such drivers to be statistically significant. By contrast, drivers under the influence of alcohol or sedatives were six times more likely to be deemed responsible for accidents. Ultimately, the study found that marijuana’s impact on driving ability is less significant than alcohol’s, and a driver can test positive for THC when they are not impaired. The study concluded, therefore, that it is irrational to assume a driver that tests positive for THC is impaired.

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Penalties assessed for a DUI conviction vary depending on the severity of the charge and any harm allegedly caused during the commission of the crime. In some states, such as Wisconsin, there is no mandatory minimum sentence for a driver that causes a fatal accident while intoxicated. This is poised to change, however, as there is pending legislation in Wisconsin that will impose a mandatory sentence of five years for DUI homicide. If the proposed Wisconsin legislation is approved and becomes a law, it will not have a direct impact on sentencing for fatal DUIs in Illinois but may spur the Illinois legislature to impose stricter minimum penalties. If you are a resident of Illinois and are charged with a DUI following a fatal accident it is critical to engage the services of an experienced Illinois DUI attorney to help you formulate a strong defense.

Penalties for DUI Related Fatalities in Wisconsin

In Wisconsin, if a person causes a car accident while intoxicated and the accident results in a fatality, the person may be charged with DUI homicide. Currently, if a person is convicted of a DUI homicide in Wisconsin, they could face a maximum penalty of forty years in prison. There is no mandatory minimum sentence, though, which means that a person convicted of a DUI homicide could face little to no jail time. Pending legislation may change that, however, as it proposes to impose a mandatory minimum sentence of five years. Critics of the bill are concerned that it takes discretion away from judges and ignores the individual facts of each case to enforce a blanket penalty.

Penalties for DUI Related Fatalities in Illinois

Illinois differs from Wisconsin in that there is a statutory mandatory minimum sentence for DUI related fatalities. In Illinois, if an intoxicated person causes a car accident that results in a fatality he or she can be charged with aggravated DUI, which is a Class 2 felony. If a person is convicted of an aggravated DUI for an accident that caused the death of one person, the mandatory minimum sentence is three years and the maximum sentence is fourteen years.

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In most states, if a motor vehicle collision caused by an intoxicated driver results in the death of one or more people, the intoxicated driver may be charged with a more serious crime than a simple DUI. Recently, a Texas court evaluated whether a person who causes an accident driving while intoxicated was properly found guilty of felony DUI with the use of a deadly weapon. While the court ultimately ruled that the evidence was not sufficient to uphold the deadly weapon charge, the court did not preclude a finding that a car could be considered a deadly weapon under certain circumstances. If you were involved in an alcohol-related fatal accident and are charged with aggravated DUI, it is critical to speak with a capable Illinois DUI attorney to discuss your available defenses.

Factual Background of the Texas Case

Reportedly, the defendant was driving on a road in Bryan, Texas, when the victim stepped in front of his car. The defendant’s car struck the victim, who was rendered unconscious. The defendant picked up the victim and placed him in his car, with the intention of taking him to the hospital. He got sidetracked, however, and was involved in an altercation which resulted in the police being called. Upon arrival, the police noticed that the victim was bloody and incoherent in the defendant’s car and questioned the defendant regarding what happened. The defendant stated that the victim stepped in front of his car, and he struck him. He also stated that he drank two “Four Loco” alcoholic beverages but refused to submit to field sobriety testing or a blood draw.

It is reported that the defendant was charged with felony driving while intoxicated and that the State sought a deadly weapon finding. The jury found the defendant guilty of driving while intoxicated and found that he used a deadly weapon, his car, during the commission of the crime. The defendant appealed, arguing that there was insufficient evidence to support the deadly weapon finding. On appeal, the court reversed as to the deadly weapon charge, on the grounds that there was no evidence that the defendant operated his car in a dangerous or reckless manner. Specifically, the court found that there was no evidence apart from the defendant’s intoxication to support the finding and under Texas law intoxication alone is not sufficient to support an inference that a defendant drove in a reckless or dangerous manner.
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It is axiomatic that the police are not lawfully permitted to institute a traffic stop unless they have reasonable suspicion that a law has been violated. While it is undisputed that reasonable suspicion is the burden of proof that must be met for a traffic stop to be legal, it is not always clear what constitutes reasonable suspicion. Recently, the United States Supreme Court issued a writ of certiorari in a case arising out of Kansas, to address the issue of whether an officer had reasonable suspicion sufficient to effectuate a traffic stop, based on evidence that the owner of the vehicle had a revoked driver’s license. If you are charged with an Illinois DUI arising out of traffic stop that may not have been lawful it is vital to engage a seasoned Illinois DUI attorney to discuss your viable defenses.

Facts Regarding the Kansas Case

Reportedly, in the Kansas case, a police officer who was patrolling ran a registration check on a truck. After running the check, the officer learned that the truck was owned by the defendant and that the defendant’s license was revoked. The officer then effectuated a traffic stop based upon the suspicion that the defendant was driving the truck despite not having a valid license. The defendant, who was driving the truck, was subsequently charged with habitually violating Kansas traffic laws.

It is alleged that the defendant filed a motion to suppress the evidence obtained during the stop, arguing that the officer lacked reasonable suspicion to pull him over and that an officer cannot infer that the owner of a vehicle is the person driving the vehicle. The court granted the defendant’s motion, after which the State appealed. The appellate court reversed the trial court ruling, and the Kansas Supreme Court granted review. Upon review, the Kansas Supreme Court reversed the appellate court ruling. The case is now before the United States Supreme Court, to address the issue of whether it is reasonable for an officer to infer that a vehicle is being driven by its registered owner for purposes of an investigative stop. Continue reading →

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Although the use of marijuana is legal in many states, drivers are still prohibited from operating a vehicle while impaired, which includes impairment due to marijuana. States across the country have struggled with the issue of how to test whether a person is under the influence of marijuana, with some states, including Illinois, choosing to employ blood tests. Recently, Michigan’s Impaired Driving Commission has recommended that the state bypass blood tests to prove a person is under the influence of marijuana, and choose to employ field sobriety tests instead. If you live in Illinois and were recently charged with a marijuana-related DUI charge it is vital to retain a skilled Illinois DUI attorney to assist you in planning your defense.

Michigan’s Impaired Driving Commission’s Findings

Following a two-year review, the State Impaired Driving Commission recommended that the state legislature not set a limit for how much THC a driver is permitted to have in his or her blood. Rather, the Commission recommended that police investing a driver for suspected intoxication due to marijuana employ filed sobriety tests to assess the person’s fitness to operate a motor vehicle. This recommendation was based on the fact that THC blood levels do not correlate to a person’s level of intoxication. THC, unlike alcohol, is fat soluble and stays in a person’s body well after a person is no longer affected by the marijuana he or she ingested. Further, the Commission found that THC limits set in other states are wholly arbitrary and are not based on sound evidence. Additionally, the State has been able to convict people of DUIs absent any chemical testing. While Michigan currently has a zero-tolerance level for any THC in a driver’s blood it will be interesting to see if the law changes based on the Commission’s recommendations.

Illinois Marijuana Law

Currently, under Illinois law, a person is not permitted to drive while under the influence of any drug, including marijuana, that affects the person to the point where he is or she is incapable of driving safely. Thus, a person can be charged with DUI for the use of marijuana. Illinois has set a threshold of 5 nanograms of THC in whole blood for the level at which it will be presumed a driver was under the influence of marijuana. For cases where the defendant’s blood concentration of THC is less than 5 nanograms, the person’s THC blood level can be considered along with other competent evidence to determine if the person was under the influence of marijuana. While the Michigan Impaired Driving Commission’s recent findings will not affect Illinois law, they may be persuasive as to whether Illinois and other states should continue to employ THC blood levels in the prosecution of DUIs.
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In response to the legalization of marijuana in states throughout the country, some states have considered enacting laws restricting the use or possession of marijuana while in a vehicle, similar to the laws restricting the use of alcohol. For example, the Massachusetts Special Commission on Operating Under the Influence and Impaired Driving (the Commission) has recommended that the legislature enact laws to prohibit open containers of marijuana in vehicles. While currently, Illinois’ open container law only applies to open containers of alcohol, the Commission’s recommendations could be a sign of changes to come throughout the country. If you are charged with a DUI or violation of Illinois’ open container law, you should speak with an experienced Illinois DUI attorney as soon as possible to discuss the facts of your case.

The Commission’s Findings

Reportedly, the Commission recommended passing a law prohibiting drivers from traveling with open containers of marijuana, making it a civil infraction. The Commission further recommended that a person found to be in violation of the law face a $500.00 fine. The Commission also recommended that a person who refused to submit to a roadside drug test suffer a six-month license suspension, similar to the penalty for refusing to submit to a breath test. Further, the Commission recommended instituting electronic warrants to allow police officers to obtain blood tests in an expedient manner.

Notably, the Commission voted on extending the open container law to marijuana, despite valid concerns regarding how the law would be implemented. One of the main concerns was the lack of clarity as to how the law would apply to a bag of marijuana or edible forms of cannabis. The Commission also set forth recommendations regarding education as to the intoxicating effects of marijuana. Specifically, it was recommended that police officers undergo more extensive training regarding signs of drug impairment. It also recommended launching a public awareness campaign regarding the dangers of driving while under the influence of marijuana.

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The Maine Supreme Judicial Court recently analyzed a rare defense in a DUI case: the defendant should not be found guilty due to gut fermentation syndrome. The court ultimately rejected the defense based on the defendant’s failure to produce expert testimony, but the court raised concerns regarding the effect such a defense may have on DUI cases in general. If you are currently facing an Illinois DUI charge, it is in your best interest to meet with a skilled DUI defense attorney regarding the potential defenses in your case.

Gut Fermentation Syndrome

Reportedly, the defendant in the Maine case was stopped due to suspicion of DUI. Chemical testing revealed that the defendant’s blood alcohol level was almost four times the legal limit. As such, the defendant was charged with DUI. The defendant’s attorney argued that the defendant should not be found guilty because he suffers from gut fermentation syndrome. Gut fermentation syndrome is a rare disorder in which a person’s body involuntarily ferments alcohol in the digestive syndrome. Gut fermentation syndrome ultimately results in intoxication, even if the person suffering from the syndrome has not consumed alcohol.

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The protections afforded by the Fourth Amendment of the United States Constitution prohibit the police from subjecting a person to an unreasonable search or seizure. In DUI cases, the right to be free from unreasonable searches and seizures has been interpreted to prevent the police from subjecting a person to a blood test without a warrant, unless the person consents to the test. Typically, this means that the results of any blood test taken without a warrant or valid consent would be suppressed.

There are exceptions to the rule, however, as shown in a recent case in which the Arizona Supreme Court upheld a DUI conviction of a woman regardless of the fact that her blood test was not voluntary, on the basis that the police believed they were acting in good faith. Even though the decision is not precedential outside of Arizona, cases that interpret a person’s rights with regards to chemical testing continue to affect the landscape of DUI law throughout the country. If you are charged with DUI in Illinois, it is prudent to meet with an experienced Illinois DUI defense attorney to discuss what evidence the State may be able to use against you.

The Defendant’s Blood Test

The defendant was arrested on suspicion of DUI. The arresting officer read the defendant a form that stated that under Arizona law, she was required to submit to a blood test. The defendant then submitted to testing. She was subsequently charged with aggravated DUI. Prior to trial, she moved to have the results of the blood test suppressed on the grounds that her consent was coerced. Her motion was denied and she was convicted of aggravated DUI, after which she appealed.

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The laws regarding what evidence may be admitted at a DUI criminal trial continue to change throughout the country. In many states, including Illinois, the laws allow the State to introduce evidence of a defendant’s refusal to submit to a breath test as evidence of guilt at trial. Lately, however, there have been challenges to implied consent statutes and the constitutionality of admitting evidence of a refusal to submit to chemical testing throughout the country.

Recently, in Elliot v. Georgia, the Supreme Court of Georgia held that a Georgia statute which permitted the State to introduce evidence of a defendant’s refusal to submit to a breath test was unconstitutional because it violated the defendant’s Fifth Amendment right against self-incrimination. If you are charged with an Illinois DUI, it is important to retain a seasoned Illinois DUI attorney who will aggressively advocate on your behalf to help you retain your rights.

Facts Regarding the Defendant’s Arrest 

Allegedly, the defendant was stopped due to suspicion of DUI. She was arrested, after which she refused to submit to a breath test. Prior to her trial, the defendant filed a motion to suppress evidence of her refusal to submit to chemical testing, arguing that the introduction of the evidence would violate her right against self-incrimination under the Georgia Constitution. The court denied the defendant’s motion, after which she appealed.

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