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Pursuant to Georgia law, a trial judge may decide whether a procedure in question has reached a stage of scientific certainty. The trial court makes this determination based on evidence presented to it during trial, or based on exhibits, treatises, or cases from other jurisdictions. The trial court ultimately decides based on the evidence available to him rather than by calculating the consensus in the scientific community. This issue came up before the Georgia Supreme Court this fall in the context of a DUI appeal. It could play a role in Illinois DUI proceedings at some time as well.

Following a jury trial, a Georgia woman was convicted of DUI and possession of an open container. She appealed the DUI. The appeals court affirmed, and the Georgia Supreme Court granted certiorari to consider whether the intermediate court erred in holding that the trial court properly admitted the police officer’s testimony correlating her horizontal gaze nystagmus (HGN) test results with her blood alcohol content (BAC). The Georgia Supreme Court reversed her conviction because the testimony lacked a sufficient foundation.

The defendant was pulled over for a broken headlight, and the officer observed that her speech was slurred and she smelled of alcohol. Moreover, she was wearing a wristband from a bar, and there was a plastic cup in the center console that seemingly contained alcohol. The officer administered an HGN test, which revealed four out of six cues suggesting impairment.

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Excessive force is when a police officer uses force beyond what a police officer should reasonably believe is necessary. A police officer may be held liable for using excessive force during an arrest, traffic stop, or other detentions–such as during an Illinois DUI arrest. A police officer can also be liable for failing to prevent or explicitly endorsing another officer’s use of force. While excessive force is typically a civil charge, there are related criminal charges, such as assault by a police officer.

This fall, a 41-year-old Northern California police officer was arrested for assaulting a DUI suspect with his baton. The victim was taken to the hospital to be treated for injuries that were not life-threatening. After being cleared by the doctors, he was taken to jail on DUI charges, failure to yield, and resisting arrest. The victim claimed that in beating him with the baton, the officer broke the victim’s arm and fractured his finger. He continues to deal with emotional trauma resulting from the incident.

The Rocklin Police Officer was taken into custody in late September 2017. He was charged with assault with a deadly weapon causing great bodily harm, filing a false police report, and assault under the color of authority. The last charge is defined as follows by the California Penal Code:

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The Fourth Amendment protects U.S. residents from unreasonable governmental searches and seizures. This fall, the Illinois Supreme Court was tasked with deciding whether an alleged hospital blood draw violated an Illinois DUI defendant’s constitutional rights.

The defendant was charged with DUI following a motorcycle accident. He filed a motion to suppress the results of blood-alcohol testing on the ground that the blood draw performed at the hospital after his accident violated the Fourth Amendment. Specifically, he argued that the police officers forcibly placed him in an ambulance, despite his refusal of medical treatment. The motion further argued that the blood draw performed at the hospital was a search conducted without a warrant, without consent, and without exigent circumstances. The trial court granted defendant’s motion, and the appeals court affirmed. The state petitioned to the Illinois Supreme Court, which accepted the appeal and reversed.

The state argued on appeal to the Illinois Supreme Court that the lower court erred in holding that the defendant established a prima facie case that the alleged blood draw was an unreasonable search. The state high court agreed.

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The Illinois DUI law provides, in part: “(a) A person shall not drive or be in actual physical control of any vehicle within this State while [under the influence].” The driving while license suspended or revoked (DWLSR) statute includes the following language:  “(a) Except as otherwise provided in subsection (a-5), any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person’s driver’s license [is suspended or revoked… shall be guilty of a Class A misdemeanor].” Senate Bill 0396, which was passed in both chambers and was signed into law over the summer, amended the Illinois Vehicle Code (“IVC”) to change the definition of “low-speed electric bicycle.”

The IVC defines a “vehicle” as follows:  “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 under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.”

The IVC defines a “motor vehicle” as:  “Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles.”

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The Fifth Amendment to the United States Constitution protects Illinois DUI defendants and those in other states from self-incrimination. The Georgia Constitution’s protection is broader. It applies to more than just testimony, also applying to coercive acts that generate incriminating evidence. This fall, the Georgia Supreme Court had to decide whether the Georgia Constitution‘s protection prohibited police from forcing someone suspected of DUI to be breathalyzed.

The defendant was convicted of DUI and related traffic offenses. He appealed. He challenged the lower court’s denial of his motion to suppress the results of a breath test. He argued that Georgia’s implied consent notice statute was unconstitutional. He further contended that his state constitutional right against self–incrimination was violated when law enforcement asked to breathalyze him, and the deceitful language of the implied consent notice was coercive. For these reasons, the defendant argued that the admission of his breath test results violated his constitutional rights.

The court agreed with the defendant that taking a breath test implicates a Georgia resident’s state constitutional right against compelled self–incrimination, and it overruled precedent ruling otherwise. The court reasoned that the relevant portion of the Georgia Constitution prohibits compelling a suspect to perform an act producing incriminating evidence, but it does not ban compelling a suspect to be present so that another person may perform such an act.  And, as with other constitutional rights, a suspect may consent to act in a way the statute would prevent the state from compelling.

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Washington State law defines “vehicle” to include bicycles. In 1995, however, the Washington Court of Appeals ruled that the state DUI statute does not include bicycles. While this case is not controlling law in Illinois, attorneys who help people charged with an Illinois DUI find its reasoning compelling.

At about 3 a.m. in June 1992, the defendant was riding his bicycle in Montesano, Washington. An officer pulled him over after watching him swerve and make wide turns. The officer testified that the defendant had slurred speech and smelled like alcohol. The officer asked him to perform field sobriety tests, several of which he failed. He was arrested for DUI. At the station, he waived his Miranda rights. A breath test indicated his blood alcohol level was .13.

Following a bench trial, he was convicted of driving while intoxicated. His motion for a new trial was denied, and he appealed.

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This summer, the Florida Supreme Court heard arguments regarding whether the state has sufficient rules for measuring the blood-alcohol levels for DUI suspects. The case arose after a Palm Beach millionaire was convicted of DUI manslaughter following a 2010 collision. His attorneys challenged the Florida Department of Law Enforcement (“FDLE“) rules before the state high court. While the rules are not exactly the same in Illinois, people charged with an Illinois DUI may raise similar types of arguments in some cases.

Following a late-night two-vehicle accident, in which the other driver died after his vehicle was submerged in a canal, the defendant was charged with DUI manslaughter with failure to render aid (Count 1) and vehicular homicide with failure to render aid (Count 2). He was convicted and sentenced following his first trial. After juror misconduct came to light, his first conviction was vacated, and he was granted a new trial.

At the second trial, the evidence showed that he ran a stop sign without braking and “t-boned” the victim. He was going 63 miles per hour in a 35 mile per hour zone. The force of the impact pushed the victim’s Hyundai through the intersection and into a nearby canal, where it came to rest upside down. The defendant did not remain on the scene or assist the victim, who ultimately drowned. The victim did not sustain fatal injuries in the collision itself. Earlier in the evening, the defendant had consumed alcohol at several venues, the amount of which was a contested issue at trial. He was charged with DUI Manslaughter, Failure to Give Information or Render Aid, and Failure to Render Aid and Vehicular Homicide.

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This fall, the Massachusetts Supreme Judicial Court considered whether field sobriety tests (FSTs) could be admitted as evidence when a police officer suspects the driver has been driving while under the influence of marijuana. In determining whether a suspect is driving under the influence of alcohol, police typically administer three FSTs — the “walk and turn test,” the “horizontal gaze nystagmus test,” and the “one leg stand test.” These tests were specifically developed to measure alcohol consumption, and there is agreement in the scientific community that a strong correlation exists between insufficient performance on the FSTs and a BAC (blood-alcohol content) of over .08% (the legal limit). By contrast, there is no scientific agreement yet that FSTs, or some FSTs, can determine marijuana intoxication.

In 2016, the Illinois governor signed SB 2228, dictating that drivers will be subject to Illinois marijuana DUI charges only if they have at least 5 ng of THC in their blood, or at least 10 ng of THC in their saliva. Prior to the law, the state could bring DUI charges even when the subject had just trace amounts of THC in their system. This meant that someone who smoked marijuana weeks prior could still test positive and be charged with a misdemeanor. The fact that people could face DUIs for trace THC in their systems “was making a crime without any criminal intent,” said an Illinois public defender.

The new Illinois law did not change the pre-existing law making it a DUI to drive while under the influence of cannabis. At trial, the state must prove by the arresting officer’s expert testimony that the person was impaired due to the consumption of cannabis. As with a DUI for alcohol, a person can be found guilty even if he or she is under the “legal limit” if the court finds that he or she was impaired to the point that he or she was unable to safely operate a motor vehicle.

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The Washington Supreme Court recently considered whether a probationer convicted of DUI may legally be required to submit to a random urine test for drugs and alcohol. In an en banc opinion, the state high court affirmed the intermediate court’s holding that since the urine test was ordered to track whether she was complying with a valid probation condition requiring the appellant’s sobriety, it did not violate the state constitution.

In the summer of 2014, the appellant pleaded guilty to one count of DUI. As a condition of her sentence, the court ordered that the appellant not do drugs that weren’t prescribed or drink alcohol. Over defense counsel’s objection, the court required the appellant to submit to random urine testing.

 

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A man was killed in a car crash caused by a driver who huffed 1,1-difluoroethane, or DFE, immediately before and while driving. Based on her prior history of becoming unconscious after huffing DFE, the Pennsylvania Supreme Court concluded that her conduct constituted the high level of recklessness required for a finding of malice sufficient to support her convictions of third-degree murder and aggravated assault. It therefore affirmed the superior court’s decision. This decision may be relevant to Illinois drug DUI cases in the event that the courts in this state consider a similar situation.

The Commonwealth charged the driver with numerous offenses, including aggravated assault, aggravated assault with a deadly weapon, aggravated assault while DUI, homicide by vehicle, third-degree murder, and homicide by vehicle while DUI.

At her October 2014 jury trial, the evidence showed that the driver and her then-fiance drove to a Walmart store. They purchased two cans of Dust-Off and some other items and then returned to the car. (Dust-Off contains DFE, a colorless gas commonly used as a refrigerant or as a propellant for aerosol sprays and in gas duster products.) Before exiting the parking lot, she opened the Dust-Off, and both she and her ex-fiance huffed.

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