Illinois DUI Lawyer Blawg

On January 21, 2016, the Fourth District Illinois Court of Appeal upheld defendant Albert Fleming’s nine-year prison sentence for an aggravated DUI.

Fleming struck and killed pedestrian Anthony Pauls while he was crossing the street on October 12, 2012. The state alleged that Fleming’s driving under the influence was the proximate cause of Pauls’ death. Then, the 20-year-old Fleming was charged on October 15, 2012 of DUI and leaving the scene. The state later charged him with an additional count of aggravated DUI.

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DWI charges against a woman in Buffalo, New York, were dismissed based on a surprising defense:  “Her body is a brewery.” The woman’s blood-alcohol level was recorded at over four times the legal limit when it should have been between .01 and .05. Her rare condition was not discovered until after her arrest.

Her attorney Joseph Marusak submitted medical evidence of the woman’s “auto-brewery syndrome,” which converts high-carbohydrate foods into alcohol. The evidence prompted the New York judge to dismiss her DWI.

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Beginning on January 1, Illinois will dispose of the requirement that people arrested for a DUI are prohibited from driving for a minimum of 30 days. Instead, recent DUI arrestees will be permitted to keep driving, provided they install breath-measuring equipment in their cars to ensure their sobriety. This practice is quickly becoming the national trend.

The new law removes a type of punishment that has long been a major point of contention in the debate over appropriate DUI punishments.

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Illinois altered its laws affecting drivers with multiple DUI convictions with House Bill 1446, which was signed into law in August and becomes effective on the first day of the new year. Under prior Illinois law, a driver with four or more DUI convictions was not permitted to seek a hearing for relief (either in the form of a Restricted Driving Permit (RDP) or a full reinstatement of driving privileges). Illinois precedent dictated that a hearing was barred regardless of whether the arrest occurred in Illinois or elsewhere, even if the out-of-state conviction was not recorded on the driver’s Illinois record.

This situation created problems for both Illinois residents and nonresidents. Given reciprocal laws and comity within the United States, almost all states honored the DUI revocation. The perverse result was to preclude nonresidents from obtaining driving privileges in any state.

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Stroger Hospital executive Robert Vais was sentenced to 100 days in prison for fatally striking a young chef who was biking home from work on December 7, 2013. Vais was driving home drunk from a Christmas party.

During an emotional sentencing hearing last month, Vais tearfully apologized for the death of 28-year-old Hector Avalos. Avalos’ mother, Ingrid Cossio, cried on the witness stand, explaining to the full courtroom how she wanted to die after her son’s death. “[Vais] needs to face the consequences,” she said. “He didn’t just kill my son. He killed me too.”

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After the Georgia Supreme Court ruled this past May that mere compliance with the statutory implied consent law did not, per se, amount to actual and voluntary consent to a blood test, Georgia defense lawyers have been successful in getting evidence thrown out in their clients’ DUI cases under the theory that they were – ironically – too drunk to consent.

In Williams v. State, the defendant appealed his conviction for DUI and failure to maintain lane. The trial court denied his motion to suppress the results of the blood test on the basis that it was obtained without a warrant in contravention of his Fourth Amendment rights. The Georgia Supreme Court vacated the state court judgments and remanded to reconsider the defendant’s suppression motion.

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Jermaine Phillips challenged his DUI conviction, claiming that the evidence failed to prove his guilt beyond a reasonable doubt. Specifically, he argued that his blood-alcohol level of .059 was below the legal limit, and other circumstantial evidence of his guilt was weak. An Illinois appellate court affirmed Phillips’ conviction, holding that the state presented sufficient evidence that Phillips emitted a strong odor of alcohol, exhibited slurred speech, had bloodshot eyes, and performed poorly on the field-sobriety tests. The court reached this conclusion despite the fact that Illinois law eliminates the presumption of impairment when a defendant’s blood-alcohol level is between .05 and the legal limit of .08, like Phillips’.

In 2010, Phillips was charged with three offenses:  (1) driving under the influence of alcohol; (2) driving under the combined influence of alcohol, other drugs, or intoxicants; and (3) driving with no registration light.

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This September, the Illinois Supreme Court held that the Illinois implied consent statute was unconstitutional as applied to a driver when the test was requested two days after the motor vehicle accident.

In May 2012, Kevin McElwain was involved in a traffic accident. He was stopped at an intersection and began to make an U-turn when a motorcycle collided with the side of his vehicle. The driver and passenger of the motorcycle had substantial injuries, and the passenger died. On the date of the accident, McElwain did not receive any tickets and was not asked to take any chemical tests. The officers present on the date of the accident did not think he appeared to be under the influence of any illicit substance.

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Last month, Governor Bruce Rauner and the Illinois General Assembly decided to give four-time DUI offenders – whose licenses were permanently revoked under former state laws – a second chance. Recent data from the Illinois Secretary of State’s office suggests the law will effect 5,085 drivers, 55% of whom live in the Chicago metropolitan area.

Under the new law, which becomes effective on January 1, four-time DUI offenders can apply for restricted driving permits, enabling them to drive in specific circumstances, such as going to work, driving their kids to school, or visiting the doctor.

The law only applies to those whose licenses have been revoked for at least five years. Additionally, applicants must prove that they’ve been sober and that they’ve equipped their cars with breath ignition interlock devices, which prevent their cars from starting if they’ve consumed alcohol. Eligible drivers will be overseen by one of nine companies the state employs to supervise breath ignition interlock devices.

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Last month, a Florida judge recommended permanent disbarment for three lawyers who set up their legal opponent to be arrested for a DUI. His findings will be sent to the Florida Supreme Court, which will decide the lawyers’ ultimate punishment.   A month earlier, Judge W. Douglas Baird found the lawyers Stephen Diaco, Robert Adams, and Adam Filhaut guilty of arranging the 2013 DUI arrest of opposing attorney C. Phillip Campbell to gain an advantage in a multimillion-dollar defamation lawsuit. Diaco, Adams, and Filhaut represented the defendant, a radio personality who was being sued by his rival for slander.

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