Illinois DUI Lawyer Blawg

Bob Avellini, Chicago Bears quarterback from 1975 to 1984, was sentenced last month to 18 months in prison for an aggravated DUI. Avellini agreed to plead guilty in exchange for the sentence. Had he not taken the plea, Avellini could have been sentenced to up to seven years for the felony DUI. DuPage County judge Daniel Guerin ordered Avellini to commence serving his sentence on December 1 of this year.

In September 2013, 61-year-old Avellini was charged with a felony DUI and a probation violation when police stopped him near his Roselle home. According to the police, he smelled of alcohol, had “glassy bloodshot eyes” and slurred speech, and had a blood alcohol level of .181, more than twice what is legally permissible. He was just nine days into serving a 2002 DUI conviction, which involved a license suspension. Since 2002, Avellini has been arrested for six DUIs and has been convicted of three according to court records.

One of Avellini’s attorneys, David Spada, said that Avellini suffers from depression and post-concussive syndrome as a result of brain trauma incurred while playing football. Spada claims the depression likely contributes to Avellini’s issues with substance abuse.

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The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. Searches and seizures executed without a warrant are presumed unreasonable unless there is an established exception. The Supreme Court has found the act of drawing an individual’s blood (such as in a DUI investigation) to be a form of a seizure requiring a warrant, unless exigent circumstances make obtaining a warrant impractical. Courts evaluate the totality of the circumstances on a case-by-case basis to determine whether exigent circumstances justify a warrantless search. Exigent circumstances have been found to exist where the time needed to obtain a warrant would result in the destruction of evidence.

Last January, the United States Supreme Court decided in Missouri v. McNeely that in DUI investigations, the natural diminution of alcohol in a defendant’s bloodstream does not necessarily constitute an exigent circumstance sufficient to bypass the Fourth Amendment warrant requirement. Thus, if a DUI suspect does not consent to a blood test, the police will likely have to obtain a search warrant, issued only upon a showing of probable cause to believe the suspect is under the influence of a detectable drug. The Court noted, however, that the natural dissipation of alcohol may support a finding of exigency in a specific case, where other factors, such as the required procedures for obtaining a warrant and the availability of a judge, may affect the timeframe significantly.

In the past month, Illinois appellate courts have had the opportunity to interpret of McNeely in two cases – People v. Armer and People v. M. Gaede. 

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Illinois recently updated its DUI law in response to its new medical marijuana law, which became effective in January of 2014. Under the new law, an authorized medical marijuana user can legally use marijuana and operate a motor vehicle as long as he or she is not impaired while driving. However, a licensed user now gives up certain rights in exchange for this immunity. Normally, under Illinois law, a person being investigated for a DUI is not required to submit to field sobriety tests and there is no penalty for refusing to take or failing the tests. Under the new law, however, a licensed marijuana user must submit to these tests if the officer has reasonable suspicion the person is driving under the influence of marijuana. If the licensed user fails or refuses testing, he is subject to suspension or revocation of his driving privileges.

This October, an Arizona appellate court came to a similar, if slightly less explicitly stated, conclusion, holding that drivers with medical marijuana licenses can nonetheless be charged with driving under the influence.

Before the court was the question of whether Arizona’s Medical Marijuana Act (AMMA) prohibited the State from prosecuting a licensed marijuana user for a DUI. The court concluded that AMMA does not grant such immunity.

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The Wisconsin State Bar Association discussed an appellate court case from that state regarding whether someone could be guilty of Driving Under the Influence (DUI) on a bicycle.  The bicycle in question could be self-propelled by an electric motor or could be pedaled without the assist, or could operate with a combination of the two.  Because of the specific facts of the case, the court avoided the question of exactly what Wisconsin law does and does not prohibit on a bicycle.

Wisconsin law prohibits the operation of a “motor vehicle” while under the influence of alcohol. The defendant (the accused) argued that a bicycle is not a “motor vehicle” and he thus could not be guilty of DUI.

However, under Wisconsin law. a motor vehicle is defined as any self-propelled vehicle. The prosecution argued that since the bicycle was motor-assisted, it was a motor vehicle.

The appellate court did not accept that argument wholesale but nevertheless sided with the State due to the specific facts. After observing the defendant’s actions, police gave chase. Continue reading →

A news media outlet filed a report concerning a DUI offense that occurred in Illinois. The report indicates that 11, resulting in the death of a passenger and injuries to other passengers.

The driver is charged with what is known as “aggravated DUI”.  Under Illinois law, aggravated DUI is a felony. (625 ILCS 5/11-501(a)(1))

A standard DUI is a class-A misdemeanor, the highest level misdemeanor, just a step below a felony.  The maximum penalty for a Class-A misdemeanor is  364 days in the county jail and or a fine of no more than $2,500.  (730 ILCS 5/5-4.5-55)

The term “aggravated DUI” means that in committing a DUI, the driver did something while driving drunk that makes his or her conduct more serious than a standard DUI, so much so that it is considered felonious.  There is list of aggravated DUI offenses at 625 ILCS 5/11-501(a)(1).

The lowest level felony (Class-4) is 1-3 years in prison. A Class-3 is 2-5 years. The sentence for a Class-2 felony is 3-7 years and a Class-1 is 4-15 years.

Each felony can also carry fines and in general, subject to an ever-growing list of exceptions, probation instead of or in combination with, prison, is available. On the other hand, for a Class-X felony, probation is not available and the term of imprisonment is 6-30 years. (730 ILCS Chapter V)
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Those who are arrested for DUI in Illinois must understand how long the look back period will be.  As is the case with much of the law governing Driving Under the Influence, the answer is not clear because it is based upon political compromises and court interpretations of sometimes ambiguous language.

The answer depends upon to what the question pertains. Driver’s license or criminal charges? Suspension or revocation?

Begin with the criminal case. A DUI conviction can carry a sentence of up to 364 days in jail, two years of probation, a $2500 fine or any combination of the three, as it is a Class-A misdemeanor. (625 ILCS 5/11-501)  The best outcome for someone who is found guilty of the DUI offense with which he or she is charged is court supervision. (730 ILCS 5/5-6-3.1)

Court supervision can never carry a jail sentence.  While court supervision requires that you plead to, or are found guilty of, the offense, it is not a conviction, the latter of which requires the Illinois Secretary of State to revoke your driver’s license.

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The United States Supreme Court has the final word with regard to the interpretation of the United States Constitution, including the Fourth Amendment.  The Fourth Amendment prohibits the Government from engaging in unreasonable searches and seizures. It requires, subject to a growing list of exceptions, the Government to obtain a warrant based upon probable cause prior to engaging in a search.

In the case of Riley v. California, the police made a traffic stop of Riley and determined he was driving on a suspended driver’s license.  The Supreme Court long ago held that the police may search a person, as well as the area within his immediate control, without probable cause when the search is made “incident to arrest”.  This exception is based upon police safety and the possibility of the destruction of evidence of a crime.

In making the search incident to Riley’s arrest, police located his cell phone. Thereafter, they explored the contents of his phone and found evidence he was a member of a street gang and may have been involved with a recent murder. This all led to additional charges being filed.

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If a motorist is suspected of Driving Under the Influence (DUI),  law enforcement will request breath and or blood tests. There are two types of breath tests that must be distinguished.

Before police can make an arrest for DUI, they must have probable cause to believe the driver has committed the offense.  In other words, they must gather a sufficient amount of evidence to create  a “substantial chance” or “fair probability” of criminal activity. (Illinois v. Gates, 462 U.S. 213 (1983))

This evidence gathering depends in part upon the officer’s observations of the driver’s actions and conduct. This would include the driver’s compliance with safe driving habits and obedience to traffic laws, his or her reaction to the officer’s commands to stop and their maneuvers while pulling over.

After approaching the driver, the officer would note the driver’s physical appearance and actions (bloodshot eyes, odor of alcohol, slurred speech), ability to follow instructions and understanding of time and place.  The officer would also be cognizant of the driver’s movements upon leaving the vehicle (staggering, unsteady balance,  difficulty getting out of the vehicle).

Once the driver has come back to the squad car-typically within range of a dash cam-the investigating officer will have the driver perform standardized field sobriety tests. First up would be the horizontal gaze nystagumus. In this test, the officer moves a pencil in front of the driver’s eyes looking for certain reactions from his pupils that allegedly are “clues” to intoxication. Continue reading →