Big Changes to Illinois DUI Law

On January 1, 2009 the penalties for being charged with a DUI will increase substantially. Those penalties are based solely on the arrest, not a conviction, as erroneously reported in yesterday's Chicago Tribune.

The changes are part of a bill that was unanimously passed by the Illinois General Assembly in 2007. The delay was to let the Secretary of State prepare to implement these changes. The law doubles the length of time driving privileges will be suspended for a first-time offender.

A first-time offender with a valid license and no accident(serious injury or death) who submits to testing and fails will have his/her driving privileges suspended for six months (currently it is three months) based on the Statutory Summary Suspension for DUI arrests. A first-time offender who refuses testing will have his/her license suspended for one year (currently it is six months). Again, this is simply for being charged with a DUI, not for being found guilty of a DUI. Think about it; even if all of the criminal charges are dismissed, there is no way for the law to make you whole for taking away your driving privileges simply because you were arrested.

Under the current law, you cannot legally drive without receiving permission from the court, for work or educational purposes, a Judicial Driving Permit (JDP). The new law, effective January 1, permits a first-time offender full driving privileges, after a 30 day suspension that applies to everyone, as long as they inform the court in writing that they wish to drive. That desire to drive will be granted if the defendant opts to have a Breath Alcohol Interlock Ignition Device(BAIID) installed in their vehicle. The cost of the installation and monthly service fees to the provider are an additional cost to the defendant. The defendant must pay fees in full upfront to the Secretary of State. The fees are $30 per month. A six month suspension will cost $150. A one year suspension will cost $330. The installation fee is separate and paid to the company providing the BAIID installation and services. It is approximately $100 to install and then roughly $85.00 per month. Yes, this is in addition to the fee paid to the Secretary of State.

There are several terms that could trigger a violation of the use of the Monitoring Device Driving Permit (MDDP). But one to note is that upon a conviction for a moving violation such as speeding, running a stop sign, or making a U-turn where prohibited, the Secretary of State will lengthen the original suspension. A six month suspension would become a one year suspension, and a one year suspension would become a two year suspension. Yes, you would be required to pay the associated fees to the BAIID service provider. It is imperative that you get legal assistance immediately if you are charged with a DUI because in these times; this arrest has just become terribly expensive, with the potential financial impact running into tens of thousands of dollars.

Should I Blow (or do any of the other tests)?

The answer to this question varies based on several factors, including:

* Is this your first DUI, or do you have an earlier arrest for DUI in any State?
* Are you over 21?
* Do you hold a Commercial Driver's License (CDL)?
* Many other variables

When an officer first asks you step out of your vehicle and submit to Standardized Field Sobriety Tests, the officer is likely just looking to become more confident in his decision to arrest you. Ultimately, no matter how well you do, the officer will probably arrest you and charge you with a DUI. I had a client where the officer wrote on the State's Evidence Reports that my client had passed all of the Standardized Field Sobriety Tests... that officer still allowed me the privilege of serving my client. My client was not told "Sir you have passed the Standardized Field Sobriety Tests, I am sorry for any inconvenience", and told to continue on his way. He was arrested for DUI!

The Breath Test should not be taken unless you are certain that you had no more than a small glass of wine, not a tumbler (and you weigh more than Paris Hilton). You can still be charged with DUI, even if you submit to the Breath Test and the result is under the legal limit in Illinois of .08 BAC. I had a client who willingly submitted to the breath test and his results were under the legal limit of .08. He still was charged,and after several court appearances I was able to successfully have all of the charges dismissed. Based on that example, you should assume that even if you blow, and blow under the legal limit, the officer will not tell you "Ma'am you have passed the Breath Tests, I am sorry for any inconvenience, and you are free to go."

Blood or Urine tests are amongst the trickiest. Did you know that your blood or urine can show traces of drugs that you ingested weeks, if not months ago? Did you know that you could be found guilty of a DUI, even if you had a prescription for the drug that the police found in your system?

Once arrested, you face both criminal charges and the loss of your driving privileges. You need an attorney who is experienced in the complex field of DUI law to defend your freedom and driving privileges, and represent you in the Secretary of State's administrative proceedings. An attorney who specializes in defending DUI charges will be able to guide you on the immediate steps which must be taken very promptly to give you the best possible outcome.

Drink Very Carefully If You Are Driving This Holiday Season

If you are out drinking, and plan to drive, you need to know what is in your drink at all times. No, I am not talking about date rape (and guys this applies to you as well), read on. You could be charged with a DUI for driving under the influence of alcohol that has been enhanced by drugs, even if you did not know you had consumed drugs!

I recently overheard a conversation in a beauty salon, wherein a woman told the story of being in a bar recently, at which time she became tired of a fellow (male) patron's politically charged rant. When he went to the bathroom, she passed his "friends" an Ambien, which, at her request, they placed in his drink. This is a variation on the great Chicago tradition of "slipping a Mickey". After Mr. Poitical Rant's "friends" indulged her request, she left the bar, with no knowledge of whether Mr. Rant drove home safely, or what happened to him that night.

Fast forward. Our protagonist saw Mr. Political Rant and his "friends" a few weeks later; the guy appeared none the worse for wear. Apparently, and fortunately, there had been no vehicular accident involving the unsuspectingly doped bar patron on the night in question, nor any other reason for the police to take a breath, urine, or blood sample from him. It is very easy to imagine many less fortunate outcomes, including accidents involving fatalities, run-of-the mill accidents, and probable cause stops from bad driving. Any of these unfortunate happenings could have led to the unsuspecting doped patron facing a DUI charge not of his making.

You Aren't Behind on Your Child Support Payments Are You?

One more reason, besides the obvious, to stay current on your child support payments, your Illinois driver's license can be suspended.

I am not quite certain what the connection is between a driver's license and delinquent child support payments because many parents need to be able to drive in order to work. It is the payment from work that permits them to pay child support. Anything that would hamper the parent from earning a wage suggests to me a decreased ability to pay child support but this plan has brought in millions of dollars in delinquent child support.

It is important that you stay current on your child support payments. If you are unable to do so, it is not the custodial parent you need to talk to but the court in order to avoid the suspension. It is not uncommon to have informal payment arrangements where you pay what you can directly to the custodial parent. This will not prevent your driver's license from being suspended if the official court records suggest that your payments are delinquent.

Under this law, the court can order the driver's license suspension and that order is then submitted to the Secretary of State. The order can be entered once the court has determined that the parent is more than 90 days behind in making payments.

In Illinois, driving while your license is suspended is a criminal misdemeanor. According to the Illinois Vehicle Code, you can be found guilty of this offense for driving or being in physical control of the vehicle. An individual who is convicted of this offense the maximum sentence is 364 days in jail and/or fines up to $2,500.

What Is Driving Under the Influence?

Many people believe that they have to be drunk or high in order to be charged and found guilty of DUI in Illinois. They are wrong. Today I will cover drinking and driving, but look for an upcoming blog on drugs and driving.

In Illinois, you can be found guilty if you do not blow, or even if your breathalyzer results are below 0.08 BAC. While the legal limit in Illinois is under 0.08, you are not deemed "sober" (for purposes of the law) unless you blow under 0.05. Even in those instances where you blow under 0.05, you may still be arrested and need to hire an attorney. The range between 0.05 and 0.08 is where you may be found guilty of driving under the influence.

BAC levels in this gray area, or in cases where a blow was not given, may cause other signs to be considered in order to determine whether you are "under the influence". Those signs include:

* there was an accident that was your fault
* driving erratically, e.g. weaving in and out of your lane
* driving the wrong way on a one way street
* slurred speech
* bloodshot eyes
* disheveled clothes
* stumbling or swaying

In addition to the non-exhaustive list of signs above, there are also standardized Field Sobriety Tests (FST). The FSTs include the one-leg stand, walk and turn, and Horizontal Gaze Nystagmus (HGN). There are also non-standardized tests such as the finger-to-nose test, alphabet test, or coin test. As you can imagine, there probably would not be an arrest unless the officer thought you failed the test.

What is driving under the influence of alcohol? It all depends.

Little Known Consequences of a Chicago DUI Arrest

Did you know that your license can be suspended just because you were charged with a DUI?

The consequences of driving in Chicago, or anywhere else in Illinois, while your license is suspended or revoked based on a DUI arrest can be huge. There are no emergency defenses, like driving a friend to the hospital, that permit you to drive. Even worse, the car is subject to forfeiture, even if you do not own the car!
Sometimes the lawmakers just doesn't understand the hidden impact of the legislation they pass.

Lake County Judge Keeps HIis Driving Privileges While DUI Case is Pending

Judge David Hall prevailed on his Statutory Summary Suspension Hearing. He will not have his driving privileges restricted while his DUI case is pending in Lake County.

In Illinois, a driver agrees, known as implied consent, to submit to chemical testing, breath, blood, or urine, at the request of an officer who suspects a DUI. There are consequences to the suspected driver whether permission is granted to take the test or not. 

In the case of Judge Hall, he did not submit to a breath test however his blood was tested after he was taken to the hospital.

Whenever one is charged with a DUI a distinct action occurs simply based on the arrest, not a subsequent finding of guilty. A driver will have their driver's license suspended for a minimum of three months(90 days) if they submitted to chemical testing.  If the driver does not submit then the suspension is for six months (180) days. There are different penalties, often more severe, if the driver holds a Commercial Driver's License(CDL); is under the age of twenty-one; or has been charged before with a DUI. This action is taken by the Secretary of State, not the court hearing the underlying criminal offense of DUI. 

To avoid the suspension the driver must have a hearing on the Statutory Summary Suspension, again this is separate from the criminal matter, and prevail in order to avoid losing their driving privileges. In order to have a hearing, one must request it within 90 days of the arrest. Once the request for a hearing has been made, the State must provide a hearing within 30 days. This is to prevent the hardship to the driver of losing driving privileges, assuming a great outcome at the hearing.

The Petition to Rescind Statutory Summary Suspension is narrow in its operation. One can only win for the following reason:

        1) The officer did not have probable cause for the traffic stop

        2) The officer did not have probable cause to believe the petitioner was driving under the influence

        3) The Petitioner did not refuse to submit to testing by the Officer

        4) The Petitioner submitted to testing by the Officer and the results were under.08 BAC

I will write more on my blog later but there are big changes coming to Illinois in DUI law as of January 1, 2009.

U.S. Supreme Court Decisions Influencing DUI Defense

Over the years, the United States Supreme Court has handed down numerous decisions that have had a tremendous impact on the prosecution of DUI cases. The following is a brief survey of a few of these important cases.

Blood Tests Used for DUI Conviction
Schmerber v. California, 384 U.S. 757 (1966)
The landmark decision in this case allows blood test results to be used as evidence in DUI cases even when taken over the defendant’s objection. In this case, the police officer forced the DUI suspect to submit to the blood test. The court determined that the blood sample drawn by a doctor in a hospital, following the proper procedures, was reasonable. The court ruled that a defendant’s Fifth Amendment privilege against self-incrimination did not apply to physical evidence, when such evidence came from the individual under medical circumstances. The court also concluded that the taking of blood did not involve the suspect providing communication or testimony, in an oral or written form, which would have been protected under the 5th Amendment.

Hearings Necessary for DUI License Suspension
Bell v. Burson, 402 U.S. 535 (1971)
The court ruled that a driver’s license is a possession which may not be taken away without the procedural due process required under the Fourteenth Amendment. The Supreme Court recognized that a driver’s license is essential to one’s livelihood and a driver’s license may not be taken by the state, such as in the case of a DUI prosecution, without some type of procedural due process. This ruling effectively ensured that a motorist charged with a DUI must receive some type of hearing. This hearing must then allow the individual to challenge the state’s attempt to take away his or her driver’s license for any length of time.

Breath Analysis Used for DUI Conviction
California v. Trombetta, 467 U.S. 479 (1984)
The Supreme Court ruled breath analysis tests are admissible evidence in DUI prosecutions even though samples of the suspect’s breath are not preserved as possible exculpatory evidence.
Officers in this case used a device called an intoxilyzer to determine the blood alcohol concentration of a suspected drunk driver. The breath test required the driver to breathe into the intoxilyzer, thus providing a breath sample. The device then recorded the level of alcohol concentration in a printout, thereby providing a breath analysis. The driver’s breath was removed from the device and not saved. Individuals prosecuted using intoxilyzer results argued that they should have access to any evidence necessary to their defense. They argued that they should be given the opportunity to independently analyze the breath used to determine the blood alcohol concentration. However, the Supreme Court determined that the breath collected from any suspect was unnecessary to their defense. This decision was based on the finding that the intoxilyzer had extremely low error rates and that an individual could challenge the results through other means, such as cross examination of the officer that performed the test.

These cases represent just a small part of the many influential decisions related to DUI law that the Supreme Court has handed down. Be sure to return to my blog for more information regarding court decisions influencing drunk driving defense. Thanks for reading my blog. If you have a comment, please feel free to post it here, but keep in mind your comments will not be confidential. If you have been accused of a DUI or traffic violation, contact me for a free, confidential consultation.

Update on Former Lake County Chief Judge David Hall

In a prior blog entry, we followed the arrest of Lake County Chief Judge David Hall for driving under the influence and resisting arrest following an incident on Illinois Highway 60 on April 26th. At the time of this arrest, Hall refused to submit to field sobriety or breathalyzer tests. Hall had entered a plea of not guilty and asserted that arresting Vernon Hills officer Jesse Goldsmith used pepper spray on Hall without provocation, while Hall was seated in his vehicle. According to Goldsmith’s report, he used pepper spray on Hall after Hall refused to exit the vehicle.

Hall had hoped to demonstrate at a pre-trial hearing that Goldsmith lacked probable cause to stop his car. However, presiding Judge Keith Brown of Kane County ruled that Goldsmith’s traffic stop was justified. Judge Brown determined that Goldsmith’s report that Hall swerved and crossed the center line several times sufficiently established probable cause. Hall also hoped to establish that Goldsmith did not have the jurisdiction to arrest Hall. Judge Brown also rejected this argument. He found that Goldsmith first observed Hall’s alleged erratic driving within the village limits of Vernon Hills.

Following Judge Brown’s rulings, the Judge set Hall’s case for a trial date of November 10th, according to the Chicago Tribune. The sufficiency of the evidence available to the prosecution to obtain a conviction is unclear because Goldsmith passed away on June 2nd from a heart attack. Typically, the arresting officer will be called to testify to the circumstances leading to the arrest and any information contained in the officer’s reports. A second arresting officer, Mark Sosnoski, maybe available to testify. However, according to news reports, Sosnoski arrived at the scene after Hall had been stopped. As a result, it is unclear whether Sosnoski observations will be sufficient to obtain a conviction.


In Other News: Efforts in Lake County and Kane County to Remove DUI Offenders from the Road


As reported by the Daily Herald, Lake County and Kane County initiated programs to contend with the increase in drinking over holiday weekends. Lake County over Labor Day weekend and Kane County over Memorial Day weekend, each instituted a policy applicable to DUI suspects who refuse to take a breathalyzer test. These individuals are then informed that a search warrant will be issued allowing for the suspect’s blood to be drawn. A refusal to submit to the blood test after the warrant has been issued could lead to contempt charges. The Daily Herald reports that failing the blood test after refusing the breath test could result in an individual’s license being revoked for at least a year.

Thanks for reading my blog. If you have a comment, please feel free to post it here, but keep in mind your comments will not be confidential. If you have been accused of a DUI or traffic violation, contact me for a free, confidential consultation.

Recent Chicago DUI Headlines

Update on Chicago Police Officer John Ardelean
Officer Charged (Again) in Connection with Fatal Crash
In prior blog entries we followed the investigation involving Chicago police officer John Ardelean, who was initially charged with a misdemeanor count of drunk driving in connection with the Thanksgiving Day crash that killed two men from Cicero. At the time of his arrest Ardelean declined to take a field-sobriety test and did not submit to a blood alcohol test until nearly eight hours following the crash. Results of the blood alcohol test showed a blood alcohol concentration (BAC) of .032, well below the legal limit of .08. However, the prosecution’s investigator asserted that at the time of the crash, Ardelean’s BAC was .104 to .177. At the preliminary hearing, charges against Ardelean were dismissed due to lack of evidence.

Last week, following further investigation, the Cook County state’s attorney’s office did an abrupt about-face, indicting Ardelean on charges of reckless homicide and aggravated DUI in connection with the case. Investigators had closed the case in May, telling the family of the deceased men there was insufficient evidence to charge Ardelean. The investigation was reopened last month after video from the bar where Ardelean was drinking shortly before the accident surfaced on a local television station. Members of the Cook County state’s attorney’s office claimed they did not view the entire tape before it aired on television, and based on the full video, the prosecutors reopened the investigation. Both Ardelean and the families of the deceased dispute this account and contend the prosecutors had the full version of the video all along.

Ardelean is scheduled for arraignment on October 1st. We’ll continue to keep you updated on the developments with this very interesting case.

Teen Sentenced to Probation in Fatal DUI Crash
Also in the news this week: A Cook County Circuit Judge sentenced an 18 year-old teen from Melrose Park to 30 months of probation in connection with the fatal DUI crash in Oak Park that killed the teen’s father. The teen pled guilty to aggravated driving under the influence. The judge noted that ordinarily a prison sentence of 3 to 14 years is required in cases of aggravated DUI where a fatality has occurred, unless there are “extraordinary circumstances.” The judge stated that there were extraordinary circumstances in this case because the father has also legally intoxicated and asked his son to drive.

According to the state’s attorney’s office, the father offered his son, who was then 17, a beer. The two proceeded to drink several beers together at the father’s home in Melrose Park and at another residence in Cicero. The teen drove the family’s Ford Explorer home while his father slept in the passenger seat. The teen was driving 40-45 m.p.h. in a 25 mile zone when he hit a dip in the road and lost control, flipping the vehicle. The teen’s blood alcohol level was .164, slightly less than his father’s blood alcohol level of .168.

In addition to 30 months of probation, the teen has been ordered to perform community service.

If you have been accused of a violation of Illinois’ DUI laws, contact me for immediate assistance.

Operation Teen Safe Driving

Operation Teen Safe Driving is a statewide initiative spearheaded by the Illinois Department of Transportation’s (IDOT) Division of Traffic Safety designed to enlist teen drivers to teach safe driving skills to their peers. The program has been credited with a 52 percent reduction in teen driving fatalities in the State of Illinois in the first six months of 2008. Fatalities dropped from 82 in the first six months of 2007 to 39 in the first six months of 2008. The program, which is in its second year, is a joint effort between the Blagojevich administration, the Illinois’ Secretary of State’s office, the Ford Motor Company Fund and the Allstate Foundation.

Operation Teen Safe Driving utilizes a competition among high school students to design a community-based safe driving program targeting other teens. Over the past year, 104 high schools in Illinois have participated in the Operation Teen Safe Driving Program. Participating schools received $2,000 to implement their program. The school selected as having the best program received a $5,000 prize as well as $3,000 to continue their program. Second place schools in each region received $2,000 to continue their program, and third place schools in each region received $1,500 to continue their program.

The program, in conjunction with stringent laws aimed at teen drivers which went into effect in January, is designed to reduce the number of accidents involving teen drivers in Illinois. Effective January 1, 2008, a person under the age of 21 who is found guilty or granted court supervision for a violation of state law or local ordinance relating to illegal consumption, possession, purchase or receipt of alcohol, regardless of whether a vehicle was involved will face a loss of driving privileges, in addition to any fine imposed. Court supervision for any of these offenses will result in a 3 month suspension of driving privileges; a first conviction results in a 6 month suspension of driving privileges; a second conviction results in a 12 month suspension of driving privileges and a third or subsequent conviction will result in a revocation of driving privileges.

Operation Teen Safe Driving also involves the Illinois Liquor Control Commission (ILCC), which provides resources and information to schools about the dangers of underage drinking and driving. For further information on Operation Teen Safe Driving, visit: http://www.teensafedrivingillinois.org/

If you or your teen have been accused of driving under the influence or a violation of Illinois’ traffic laws, contact me for immediate assistance.

Illinois DUI Headlines in the News

Chicago Police Officer John Ardelean Back in the News
Last week the Cook County State Attorney’s office announced that they were reopening the investigation into the fatal car crash involving Chicago police officer John Ardelean last Thanksgiving. In a prior blog entry I mentioned that Cook County Judge Donald Panarese ruled there was not enough evidence to support felony charges against Ardelean. Ardelean refused to take a field sobriety test at the scene of the crash and did not submit to a blood or breath test until nearly eight hours after the accident. At the time of testing, Ardelean’s blood alcohol level was .032; well below the legal limit of .08. A state police investigator offered the opinion that at the time of the crash, Ardelean’s blood alcohol level as .104 to .177.

The state attorney’s office continued to investigate the case even after Judge Panarese’s ruling, but in May decided there was insufficient evidence to file new charges. The office informed the families of the victims that they were dropping the case. However, the case was reopened last week after First Assistant State Attorney Bob Milan viewed videotape footage from the Martini Ranch bar where Ardelean had been drinking prior to the crash. Previously, Milan had viewed only a portion of the videotape footage. Footage from the bar had recently aired on local television stations showing Ardelean having a drink poured down his throat by a female patron and appearing to grab a beer on his way out of the bar.

According to Milan’s office, Milan had previously viewed a different, incomplete version of the security videotape from the bar. Ardelean’s defense team disputes this statement, saying there is only videotape from the bar and the state attorney’s office has had access to it since the week of the accident. Ardelean is currently on leave from the Chicago Police Department and is the subject of an internal police investigation. I’ll continue to update you on any new developments with this case.

Bus Driver Held on DUI Charge
A bus driver driving a Coach USA Megabus express bus from Chicago bound for Detroit was pulled over on Interstate 94 near the Michigan/Indiana border after a state trooper noticed the bus appeared to be weaving. The driver, a Chicago resident, failed a field sobriety test and was arrested and booked into Berrien County jail awaiting arraignment on drunk driving charges. Another driver from the bus line was brought in to drive the 30 passengers on the bus to Detroit.

If you hold a commercial driver’s license and are accused of a DUI law violation, be forewarned that a DUI conviction will impact your livelihood. If you are arrested for violating Illinois’ DUI laws, contact an experienced DUI attorney immediately. In order to preserve your rights, you should seek legal counsel without delay.

Latest Developments in the Illinois DUI Law/HIPAA Conflict

Last week’s blog posting discusses Rockford Memorial Hospital’s refusal to perform a DUI blood draw without a court order. The hospital’s refusal sparked a debate over a conflict between Illinois’ Motor Vehicle Code and a patient’s rights under the Health Insurance Portability and Accountability Act (HIPAA). The conflict prompted a meeting this week with Winnebago County State’s Attorney, Rockford area hospitals and local police departments. An Illinois Department of Transportation (IDOT) Prosecutor also attended the meeting. The purpose of the meeting was to discuss the conflict in the laws and to work out some form of a compromise between the hospitals and local law enforcement.

The Illinois Prosecutor took the position that under Illinois Motor Vehicle law, a person involved in an accident resulting in a serious injury or death is subject to having their blood drawn for analysis, without the necessity of a court order. However, the hospitals took the position that in order to protect the privacy of their patients (and to absolve themselves of the potential for liability under HIPAA), a court order is required for a DUI blood draw.

The meeting lasted for over two hours. Two possible compromises resulted from the meeting: 1) A consent form acceptable to both sides was discussed. The IDOT Prosecutor indicated that other hospitals in Illinois are using signed releases that release the hospital from liability and confirm that the hospital has a legal basis for obtaining the non-consensual blood draw; 2) Police departments could hire specialists trained to draw blood. The IDOT Prosecutor stated police departments in other states employ phlebotomists to draw blood on the scene of the accident.

The parties did not set a date for a follow-up meeting, but indicated they would be working closely together to reach a compromise. I will keep you updated on any further developments.

In other news impacting Illinois drivers, the Illinois State Police has announced it will be implementing a new enforcement method over the upcoming Labor Day weekend. The program is called “Stay Alive on the I’s” and it involves special patrols over the holiday weekend. There will be a trooper stationed every 10 miles on interstates throughout Illinois, with additional troopers patrolling the Chicago metro area and tollways. The troopers will be on the alert for potential drunk drivers, speeding, seatbelt usage, improper lane changes, following too closely and construction zone violations.

Thanks for reading my blog. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you’ve been accused of a violation of Illinois’ driving under the influence or traffic laws, contact me for immediate assistance.

Police and Hospital in Conflict Over HIPAA Compliance, Blood Draw

Wesley J. Hanson was charged this month with aggravated driving under the influence, disobeying a traffic signal and driving without a valid driver’s license following a fatal car crash in which a 17 year-old girl was killed. Witnesses stated that Hanson ran a red light. Hanson was transported to Rockford Memorial Hospital for treatment. As part of his medical treatment, Hanson had blood drawn, and according to the police, hospital staff informed the patrol officer of the results of the blood draw.

Sgt. Dave Jacobson of the Loves Park police arrived at the hospital about 45 minutes later and requested hospital staff to make another blood draw, sometimes called a DUI kit, for the purposes of the criminal investigation. According to police, the hospital declined to perform the separate blood draw, stating they already performed a blood draw on Hanson and that a court order must be obtained and faxed to risk management for review.

Police informed the hospital that they have a court order signed by a judge allowing them to take a sample of Hanson’s blood for forensic analysis and evidence. However, out of concern over the amount of time involved in having the hospital’s legal counsel review the order, the police instead decided to reroute the court order to the Winnebago County Jail, and transport Hanson to the jail for booking. During the course of booking, the DUI blood draw is performed; nearly two hours after the police initially requested the second blood draw at the hospital. The results of the DUI blood draw were not made public.

According to Rockford Memorial Hospital, the hospital fully complied with the law in that they took a sample of Hanson’s blood for the purpose of determining any drug or alcohol content. Illinois Motor Vehicle Code (625 ILCS 5/11-501.4-1) requires disclosure of the test results to police upon request. The police say that pursuant to section 11-501.6 of the Motor Vehicle Code, they do not need a court order and do not need to wait for legal review in order to obtain a DUI blood sample from a person who has been in a personal injury or fatal motor vehicle crash. Rockford Memorial Hospital and representatives from other hospitals state they do require a court order for a DUI blood draw.

A medical blood draw and a DUI kit blood draw involve different procedures. While hospitals have different procedures in conducting a medical blood draw, the procedures for a DUI kit blood draw are standardized. The DUI kit provides a sample that is preserved for trial and provides physical evidence for state crime lab testing or a sample to be used for independent testing by the defense.

Hospitals cite concern over the Health Insurance Portability and Accountability Act (HIPAA) and whether or not releasing the results to police without a court order is a violation of HIPAA. HIPAA is the privacy rule protecting certain individually identifiable health information. HIPAA regulates how certain entities, including hospitals, use and disclose protected health information. Violations of HIPAA can result in civil and criminal penalties.

The dispute between the Rockford Memorial Hospital and the police on whether or not a court order is required for a DUI kit blood draw is ongoing, with various lawmakers, hospital representatives and others voicing their opinions on the issue in the media.

Thanks for reading my blog. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you have been accused of a DUI or traffic violation in the Chicago area or the State of Illinois, contact me for immediate assistance.

New Law Impacts Drivers with Out-of-State DUI Conviction

If you have a prior DUI conviction in a state other than Illinois, take notice of a new law that was just signed on August 4th by Governor Blagojevich. Public Act 95-0778 amends the Illinois Vehicle Code to provide that a person who commits a DUI during a period in which his or her driving privileges are revoked or suspended for DUI under the law of another jurisdiction is guilty of a Class 4 felony. A Class 4 felony is punishable by imprisonment of 1-3 years and fines of up to $25,000. This new law is effective immediately.

This new law is one of many new laws imposing strongest penalties for DUI convictions. Effective June 1, 2008, drivers face tougher penalties for DUI offenses resulting in felony charges, which are now classified as Aggravated DUI. Any mandatory term of imprisonment or community service may not be reduced or suspended. Any person sentenced to probation or conditional discharge must also serve a minimum of 480 hours of community service or 10 days of imprisonment.

The following offenses will result in an Aggravated DUI:

• DUI committed while license was revoked or suspended for DUI, reckless homicide, or leaving the scene of a personal injury or death
• DUI committed without vehicle liability insurance
• DUI committed without a valid license or permit
• DUI committed in a school zone while the restricted speed limit is in effect and involved in a crash resulting in bodily harm
• DUI while driving a school bus transporting a passenger 18 or younger
• DUI committed while transporting a child under the age of 16 and involved in a crash that results in bodily harm to the child
• DUI resulting in great bodily harm, permanent disability or disfigurement
• DUI resulting in death
• Second DUI committed after a previous conviction for reckless homicide while DUI or Aggravated DUI involving a death
• Second or subsequent DUI committed while transporting a child under the age of 16
  Third or subsequent DUI
  
  The penalties for the above Aggravated DUI offenses range from Class 4 felonies (imprisonment of 1-3 years and fines of up to $25,000) to Class 2 felonies, which carries penalties of 3-14 years imprisonment (6-28 years if more than one death is involved), fines of up to $25,000, and revocation of driving privileges for two years.
  
  The laws regarding penalties for DUI convictions are constantly changing and evolving. If you have been accused of a DUI offense, it is important to seek experienced legal counsel with special expertise in the area of DUI defense. If you have been accused of a DUI offense, contact me for immediate assistance.

2008 Illinois DUI Fact Book Now Online

Illinois Secretary of State Jesse White announced this month that the 2008 Illinois DUI Fact Book is now available. The book is frequently used as a resource for media and the general public, and contains statistics, changes in the law and other information. The book describes the penalties for a DUI conviction in Illinois, the average cost of a DUI and new laws, including a discussion of the Breath Alcohol Ignition Interlock Device (BAIID) law which will take effect on January 1, 2009, and which was a previous topic of my blog. To view the book in its entirety, visit www.cyberdriveillinois.com

Cost of a DUI Conviction
According to the fact book, convicted DUI offenders in the State of Illinois face tough penalties and licensing sanctions, with an average cost of a DUI offense a staggering $15,000. This figure reflects the cost of court and legal fees, potential income loss, costs associated with having a driver’s license reinstated, and the added cost of having to maintain high-risk auto insurance.

Here’s a breakdown of the average cost of a DUI conviction in the State of Illinois:
Insurance (3 years of required high-risk insurance at a cost of $1500 per year)=$4500
Legal Fees (uncontested plea and hardship driving permit)=$2000
Court Costs =$500
Fine (average fine)=$2500
Towing and Storage Fees=$250
Trauma Center Fund=$100
Loss of Income (Loss of four weeks income due to court appearances, jail time, community service, evaluations or remedial education classes, based on a $40,000/year salary)=$4,000
Rehabilitation (remedial substance abuse class and counseling)=$250
Driver’s License Reinstatement=$560

Total Cost=$14,660

The cost noted above does not take into consideration any potential damages to persons or property if a collision was involved. The above cost also does not factor in loss of potential future income depending on your occupation or profession. For example, if you are a professional driver such as a bus driver or truck driver, or if you are an airline pilot, a DUI conviction will impact your ability to earn a living.

What Should You Do If You Are Arrested for a DUI?
If you are arrested for violating Illinois’ DUI laws, contact an experienced DUI attorney immediately. In order to preserve your rights, you should seek legal counsel without delay. In Chicago, videotapes and audiotapes of arrests are only maintained for 30 days, after which valuable evidence documenting your arrest may be lost. In addition, if you fail to file required documentation within 46 days of your arrest, your license will automatically be suspended.

A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. If you have been arrested for DUI, call Chicago DUI defense attorney Ava George Stewart at (312) 944-3973 to schedule a free consultation. Thanks for reading.

“Use It & Lose It” Zero Tolerance Law for Drivers Under 21

Statistics show that underage drinking is on the rise nationally. In 2006, 2,663 Illinois drivers under the age of 21 had their license suspended for having alcohol in their system or for refusing to submit to chemical testing. Additionally, some 4,796 underage drivers in Illinois were arrested for DUI and received suspensions.

Illinois’ “Use It & Lose It” law is targeted at drivers under the age of 21 who have any trace of alcohol in their system, or who refuse to submit to chemical testing. Under the “Use It & Lose It” law, on a first offense, driving privileges will be suspended for 3 months for a Blood Alcohol Level (BAC) of more than .00, or driving privileges will be suspended for 6 months for failure to submit to or complete chemical testing. If the driver holds a Commercial Driver’s License (CDL), their CDL privileges will be suspended for one year.

On a second offense under “Use It & Lose It” law, driving privileges for a BAC of over .00 will be suspended for one year, and refusal to submit to or complete chemical testing will result in a suspension of driving privileges for 2 years. A second offense for a driver holding a CDL will result in a lifetime disqualification on CDL privileges.

What Happens if You are Under 21 and Convicted of DUI?
If you are under the age of 21 and are convicted of first-time DUI offense, your driving privileges will be revoked for a minimum of 2 years. You will not be eligible for a Restricted Driving Permit until the second year of your license revocation. Additionally, if you are under the age of 18, remedial education and/or retesting may be required before your driving privileges will be reinstated.

If you are under age 21, the judge may require you to attend a Youthful Intoxicated Driver’s Visitation Program as a condition of your probation or discharge. You will be required to attend a comprehensive counseling session to determine whether or not this program is appropriate for you. This program may send you on a supervised visit to a location where the impact of a DUI crash or alcoholism may be studied or observed.

Accidents Causing Injury or Death
If you are under the age of 18 and are charged with an offense as a result of an accident in which a passenger was seriously injured or killed, you may be denied a driver’s license or driver’s license renewal by the Illinois Secretary of State’s office.

Parental Responsibility
Parents face fines and possible imprisonment for allowing persons under the age of 21 to consume alcohol. It is important to note that the parents face repercussions for failing to supervise minors or knowingly allowing minors to consume alcohol; parents do not have to supply the alcohol. A parent or legal guardian who knowingly allows persons under the age of 21 to consume alcoholic beverages at a private residence is guilty of a Class A misdemeanor, and faces possible imprisonment of 12 months and a $500-2,500 fine.

If a parent or legal guardian knowingly allows persons under 21 to consume alcohol by failing to control access to a private residence or access to alcoholic beverages in the residence, and bodily harm results to someone as a result of this access, the parent/guardian is guilty of a Class 4 felony. If great bodily harm or death results, the parent/guardian faces possible imprisonment of 1-3 years and possible fines of up to $25,000.

Thanks for reading my blog-I hope you have found this information to be interesting and informative. If you have a question or comment, feel free to post it here, but keep in mind your response will not be confidential. If you are under 21 and have been accused of a DUI offense in the State of Illinois, contact me for immediate assistance.

Social Host Liability in the State of Illinois

The Drug or Alcohol Impaired Minor Responsibility Act (“the Act”) became law in the State of Illinois in 2004. The purpose of the law was to discourage social hosts from serving alcohol to minors by imposing legal liability on the host for death or injuries caused by the consumption of alcohol or illegal drugs. The Act is similar to a dram shop liability law that imposes liability on bars or other businesses that serve alcohol for death or injuries to third parties, if the person who was intoxicated was served at the establishment and was visibly intoxicated or a minor. Illinois dram shop laws will hold a business establishment responsible if the following conditions are met:

• Alcohol was sold to the patron;
• Proximate cause exists between the sale of alcohol and intoxication;
• Injuries were sustained; and
• Intoxication was at least one cause of the injuries.

The Act differs from dram shop laws in that it allows a cause of action for minors under the age of 18 who are injured by an impairment that was caused by the consumption of alcoholic beverages or illegal drugs. According to statistics released by the Illinois’ Department of Human Services’ Division of Community Health and Prevention, underage drinking is on the rise in Illinois.

Lawsuit Against Social Hosts
Just one month after the Act went into effect, an accident involving social host liability led to a lawsuit. Four girls were leaving a Halloween party where they had consumed beer from kegs. All four girls were minors. The driver of the vehicle made an illegal turn in front of a semi-tractor trailer, and one of her passengers was seriously injured. The driver submitted to a Breathalyzer test, and her blood alcohol level registered .08. The injured girl’s family filed a lawsuit against the hosts of the party under the Drug or Alcohol Impaired Minor Responsibility Act, alleging negligence on the part of the hosts. Specifically, the family alleged the host was negligent in failing to check IDs or failing to hire someone to check IDs of partygoers. The lawsuit was settled for $1,625,000.

How to Avoid Liability as a Social Host
If you are hosting a party or event, you should be aware of your responsibilities under the Drug or Alcohol Impaired Minor Responsibility Act. The Illinois Department of Transportation offers the following tips for social hosts to ensure the safety of their guests:

• Appoint a reliable bartender to monitor guests’ drinking. Don’t let your guests mix their own drinks.
• Do not serve alcohol to anyone under the age of 21. If you aren’t sure if a guest is over the age of 21, request ID.
• Set up an “alcohol free” bar with juices, flavored waters and punch or “mocktails” as an alternative to alcoholic beverages.
• Serve plenty of food to keep guests from drinking on an empty stomach
• Stop serving alcohol 90 minutes before the party ends.
• Insist that impaired guests stay over or find them a ride home. Keep the numbers of local cab companies handy.

I hope you found this blog posting to be interesting and informative. If you have any comments or questions, please feel free to respond to this posting. If you have been accused of a violation of Illinois’ driving under the influence or traffic laws, contact me for immediate, confidential assistance. Thanks for reading.

Holiday Drivers Warned of Possible Seizure and Forfeiture of Vehicle

This past July 4th holiday weekend, authorities warned of an increased police presence and additional roadside checks over the weekend. Illinois State Police Commander Jeffrey Hedrich is quoted in the Chicago Sun-Times before the weekend as saying some 200 police agencies in the state will be conducting over 100 roadside checks over the weekend.

DuPage County authorities have announced that they will be seizing vehicles from drivers; so far this year, they have seized 417 vehicles, mostly as a result of alcohol-related stops. State Attorney Joseph Birkett reminded the public in a news conference that pursuant to Illinois state law, local law enforcement agencies are authorized to seize and sell vehicles from drivers who are under the influence.

State Attorney Birkett is referring to the seizure of vehicles under 720 ILCS 5/36-1 and the corresponding forfeiture proceedings pursuant to 720 ILCS 5/36-2.1. If you are driving on a suspended license (such as a statutory summary suspension) or a revoked license (based on a previous DUI conviction) and are arrested on suspicion of felony DUI charges, your car is subject to possible seizure and forfeiture.

When a person is arrested, the vehicle is seized by the arresting police department and must be delivered “forthwith” to the sheriff of the county where the seizure occurred. Upon delivery of the vehicle, within 15 days the sheriff must notify everyone listed on the title to the vehicle by certified mail to the address on file with the Secretary of State, and must also notify the State’s Attorney in the county where the seizure occurred. The statute provides that the spouse of the owner of the seized vehicle can file a hardship provision transferring title to the vehicle to the spouse if the vehicle is the family’s sole form of transportation and the hardship to the family outweighs the state’s interest in the vehicle. Hardship relief is only available once per family. If someone in the family subsequently has the same or another vehicle seized, hardship relief will not be available.

Unless there are other mitigating factors warranting remission of the forfeiture, the State Attorney must file a complaint for forfeiture in the circuit court and serve notice on the appropriate parties, who must file a verified answer to the complaint within 20 days from the date the complaint was mailed. If the vehicle is subject to a lien, the lienholder will typically file an answer asserting their interest in the vehicle and stating they had no knowledge the vehicle would be used in the commission of an offense. The lienholder will also file a petition seeking the return of the vehicle under their security interest.

If the vehicle is not released on a hardship provision or on a lienholder’s petition, a hearing is held on the forfeiture. The state must only show by a preponderance of the evidence that the vehicle was used in the commission of a crime. The vehicle owner does not have to be convicted of the underlying offense to uphold a forfeiture proceeding.

If you have been accused of a violation of Illinois’ DUI laws, or if your vehicle has been seized, contact me for immediate assistance. Thanks for reading, and have a safe 4th of July holiday weekend.

Illinois Supreme Court Questions Reliability of a Field Sobriety Test

The Illinois Supreme Court issued a ruling in September in the case of Illinois v. McKown that questioned the use of a key field sobriety test known as the horizontal gaze nystagmus (HGN). The court ruled that the results of a horizontal gaze nystagmus test should be subject to challenge at trial. A prior Court of Appeal ruling had determined that the reliability of the test could not be questioned at trial. In overruling the Court of Appeal, the Illinois Supreme Court noted that there is a difference in opinion in courts across the country as to whether the HGN is reliable. The court previously noted that the National Highway Traffic Safety Administration (NHTSA) has determined that the test is incorrect 22 percent of the time.

The HGN is one out of a battery of three tests developed by the NHTSA to assist a police officer in obtaining validated indicators of impairment and establish probable cause for an arrest. These three tests are referred to as the Standardized Field Sobriety Test (SFST), and consist of the HGN, the walk and turn, and the one-leg stand.

The HGN test measures the extent that your eyes flicker back and forth while following a moving object such as a pen, a finger, or a small flashlight. The theory behind this test is that someone under the influence of alcohol will have difficulty following the object and that the eye flicker will occur early, while a person who is not under the influence will be able to track the object further. However, HGN test may indicate other substances besides alcohol such as seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

In the McKown case, Joanne McKown was involved in an accident involving her vehicle and three motorcycles. Ms. McKown admitted to having two beers before leaving her home and a third while driving. Ms. McKown was transported a hospital for treatment for a broken toe. While in a hospital bed, an officer administered the HGN test, which he determined Ms. McKown failed. No other field sobriety test was administered, since Ms. McKown had a broken toe and could not walk properly. The officer admitted that he knew McKown had been administered medication while in the hospital, drugs that could have affected the HGN results.

Ms. McKown was charged with multiple counts of DUI and reckless driving. She refused to submit to chemical testing until a search warrant was issued several hours later. Blood samples taken from McKown did not detect the presence of any alcohol, and the only evidence of her impairment was the failed HGN test.

The Illinois Supreme Court did not find McKown to be innocent of the charges; rather, it determined that an evidentiary hearing must be conducted to establish the reliability of the HGN test. The case was therefore remanded back to the trial court.

If you are arrested for a DUI in Illinois, you must contact an attorney immediately.
A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. Thanks for reading my blog. If you have a comment or question, feel free to post it here, but keep in mind your posting will not be confidential. If you have been accused of DUI in Illinois, call or e-mail me for immediate assistance.

DUI Courts Offer Alternative to Jail

Drivers accused of driving under the influence (DUI) may soon be appearing in special DUI courts rather than criminal court. These special courts are designed to offer court-supervised substance abuse treatment. The system is based on a model that has proven to be effective in the treatment of drug offenders. While drug courts have been in existence for over two decades, DUI courts are a more recent development, with the first DUI courts being established in 1997-1998.

According to the National Center for DWI Courts, there are currently 110 DUI courts in existence nationwide. In addition, there are 286 drug courts, including 2 in Illinois, which act as hybrid courts, currently serving both drug and DUI offenders. Studies have shown that participants in DUI court have a substantially lower rate of a repeat offense or recidivism; over a two-year period, offenders who went through the regular criminal justice system were 19 times more likely to be arrested for another DUI than those who went through the DUI court system.

The specialized DUI court system also offers economic advantages over the criminal court system. According to the Illinois Attorney General, it costs approximately $23,812 a year to incarcerate someone, as opposed to the $2,000 annual cost per participant in the DUI Court treatment program. The annual savings is thus approximately $21,000 per person.

The DUI court system recognizes that alcohol behavior is influenced by genetic and biological influences. The focus is on treatment and education, not incarceration. Participants undergo long-term treatment (typically 12 months), frequent testing to ensure abstinence from alcohol, counseling, and court appearances involving interaction with a judge. Their progress is carefully monitored and evaluated.

DUI court is an alternative to going to jail and can help some people break the cycle of an addiction to alcohol. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you are facing a DUI/DWI charge, call me to discuss your options and alternatives.

Charges Against Former Lake County Chief Judge May Be Dropped After Death of Arresting Officer

Former Lake County Chief Judge David Hall is facing charges of driving under the influence and resisting arrest following an incident on Illinois Highway 60 on April 26th. Hall was arrested by Vernon Hills officer Jesse Goldsmith, who passed away on June 2nd from a heart attack. According to the Chicago Tribune, prosecutors from the Illinois Attorney General’s Office have indicated that they will speak to the second officer who provided backup to the arresting officer before determining whether or not to continue prosecuting the case. Goldsmith’s death could result in the inadmissibility of the arrest report.

According to Goldsmith’s report, he pulled Hall over after observing Hall weaving over the center line. Hall refused to submit to field sobriety and Breathalyzer tests. Goldsmith’s report states that he detected a strong odor of alcohol from Hall. Hall has entered a plea of not guilty to the charges and has asserted that Goldsmith pepper sprayed him without provocation while Hall was seated in his vehicle. According to Goldsmith’s report, he pepper sprayed Hall after Hall refused to exit his vehicle.

Videotapes of the arrest are not available; one camera had a malfunction, and the hard drive on the other camera was full. Defense attorneys for Hall have filed a motion to quash the arrest report and have filed a motion to toss out his arrest, based on the contention that Goldsmith lacked probable cause to stop Hall’s car.

Goldsmith would likely have testified at Hall’s trial, since arresting officers are routinely called to testify on the events leading to the arrest and on the information contained in their reports. According to various news accounts, the second officer arrived on the scene after Hall had been stopped. The second officer therefore will not be able to testify on Hall’s driving and the events leading to the actual traffic stop.

Will the testimony of the second officer, who did not witness Hall actually driving the vehicle, be sufficient for a conviction for DUI? In Illinois, a police officer does not have to observe you in the act of driving while intoxicated in order for you to be convicted of a DUI. When prosecuting you for drunk driving, the state must prove that you were under the influence of alcohol while you were driving or in actual physical control of the vehicle. However, the elements of the offense must be established by evidence and not by conjecture or speculation. In other words, the State must prove that there is sufficient proof of facts tending to show intoxication and that the defendant was at the same time driving or in actual physical control of a motor vehicle. Circumstantial evidence is sufficient. For example, where a police officer observed a lone occupant of a vehicle slumped over the wheel of a running vehicle at 5:30am, the court ruled that although the officer did not see the person actually driving the vehicle, there was sufficient circumstantial evidence to show the defendant was in actual physical control of the vehicle.

Hall has stepped down as Chief Judge of Lake County, although he remains a judge and has been assigned to administrative duties. To avoid a potential conflict, Hall’s case is being prosecuted by the Illinois Attorney General’s office rather than the Lake County prosecutors. A judge from Kane County has been brought in to hear the case.

It will be interesting to see how the tragic turn of events in this case impacts the case against Hall and any other pending cases in which Officer Goldsmith was the arresting officer. Thanks for reading my blog. If you have a comment, please feel free to post it here, but keep in mind your comments will not be confidential. If you have been accused of a DUI or traffic violation, contact me for a free, confidential consultation.

Peoria’s “No Refusal” Weekend

The State's Attorney of Peoria County, Kevin W. Lyons, and the Peoria police department implemented what Lyons called a “no-refusal policy” for suspected drunk driving over this past Memorial Day weekend. Lyons sees the new procedures as giving the police the “last word” on Breathalyzer tests. This policy was put into effect for the duration the 2008 Memorial Day Weekend. Because this policy requires greater than usual staffing to implement, it will not be done on a regular basis. Lyons promised that it will likely be used again over the Fourth of July weekend and Labor Day weekend. However, there will be no announcements prior to any new implementations of the policy.

The Procedure
The “no-refusal” procedure does not radically differ from the traditional procedure for a DUI arrest under current Illinois law; however, it does add some additional steps for Peoria police to follow if a person arrested for DUI refuses a Breathalyzer test. Currently, Illinois law does not require a person to submit to chemical testing for Blood Alcohol Content (BAC), which includes a breath test (Breathalyzer) and a blood test. However, if a person under arrest for DUI refuses chemical testing, their driver's license is automatically suspended under an administrative process called Statutory Summary Suspension (see other blog entries on this subject). Some arrestees will refuse chemical testing despite the threat of a suspended license, hoping to thwart the collection of evidence against them.

Under the “no-refusal policy,” a person arrested for DUI will be given the opportunity to take a Breathalyzer test. If he refuses, the Peoria police will seek a search warrant authorizing the seizure of the arrestee's blood. To do so, the officer will have to submit a petition for a search warrant to a duty judge. The petition must detail facts that would support the issuance an order to force blood withdrawal. If the driver who refused testing physically resists a court-ordered blood test, he can be arrested for Resisting a Peace Officer. A person who has refused initial testing and is subsequently convicted after a court ordered blood test will be charged $545 for that blood test.

Breathalyzer v. Field Sobriety Testing
It is important to remember that the Breathalyzer test at issue here is the one taken after a suspected drunk driver has already been arrested on a charge of DUI. This test should not be confused with the Field Sobriety Testing (FST) done prior to an arrest. Field Sobriety Testing is the process by which a police officer assembles facts against a person that will lead to probable cause. For example, if you are unable to stand on one leg or say the alphabet backwards, those facts can be used to make a case for probable cause. Once a police offer has assembled enough facts for probable cause, he will make the arrest. Some police officers will use a portable Breathalyzer device as part of the Field Sobriety Testing. However, you are not required to submit to a Breathalyzer test and are not subject to the “no-refusal policy” until after you are arrested.

What Happened Memorial Day in Peoria?
The 2008 Memorial Day weekend resulted in five DUI arrests in Peoria. Of those five arrests, two people refused the initial Breathalyzer test, but both submitted to a blood test “with no struggles” after a warrant to draw blood was obtained.

Coming to a County Near You
Kane County State's Attorney John Barsanti plans his own “no-refusal policy” weekend sometime in the future. He is hoping to reduce the number of people who refuse the Breathalyzer test. In April, over 40% of the 158 people arrested for DUI in Kane County refused to submit to chemical testing. Similar programs have been popping up in other parts of the country. For example, El Paso, Texas has conducted its own “no-refusal policy” weekends on Christmas 2007, New Years Eve 2007, and Memorial Day 2008. We will have to wait to see if these policies are constitutionally challenged, and, if so, what that result will be.

Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.

More Serious Charges for Multiple Offenses

It is no surprise that repeat offenders receive stiffer sentences. Recently, a 32-year old Lombard man who was charged with DUI for an incident last summer had his charge amended to a more serious “aggravated driving under the influence.” His charge was upgraded due to his previous record of reckless driving. In 1998, he was convicted for causing a crash that resulted in two deaths.

Aggravated DUI
An aggravated DUI is a serious offense. Under the Illinois Vehicle Code (625 ILCS 5/11-500, subsection (d)), a driver may be charged with aggravated DUI if that driver was driving under the influence in any of the following situations:

• The driver was involved in crash that caused a death (includes driving a motor vehicle, snowmobile, all-terrain vehicle, or watercraft).
• The driver caused a personal injury.
• The driver has received a third DUI.
• The driver was driving a school bus with children.
• The driver had a previous history of reckless homicide or aggravated DUI involving a death.

Aggravated driving under the influence is a Class 4 felony and carries with it a possible prison sentence of one to three years. This penalty is increased to a Class 2 felony for a third or subsequent conviction and carries a possible three to seven year prison sentence. A fifth conviction is a Class 1 felony carrying four to fifteen years, and a sixth conviction is a Class X felony with a possible six to thirty year prison sentence. These possible sentences can be extended if there is a personal injury or death involved. For example, a Class 4 felony with a personal injury would carry a possible one to twelve year sentence. If a death was involved, the sentence could range from three to fourteen years and six to 28 years for multiple deaths.

Illinois law also provides “add-ons” and modifications if other factors were present during a DUI arrest. These factors include driving under extreme influence (BAC of .16 or higher), driving under the influence while endangering a child, and driving under the influence while under the age of 21. With so many different factors and permutations, it is important to consult an attorney who is experienced with Illinois drunk driving laws to sort through your case.

Other Penalties
Imprisonment is only one deterrent offered by Illinois law. Repeat offenders can expect any of the following to occur:

• court order to install an ignition interlock device in vehicle to permit driving
• fines ranging from $2,500 to $25,000
• suspension or permanent revocation of driving privileges
• mandatory jail time
• community service
• vehicle's registration may be suspended or revoked
• vehicle may be impounded or seized
• be required to complete alcohol education course or substance abuse treatment program
• statutory suspension

Statutory Summary Suspension
A Statutory Summary Suspension is an administrative procedure requiring the automatic driver's license suspension of a driver arrested for DUI who fails or refuses to undergo chemical testing. A test showing a Blood Alcohol Content (BAC) of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound constitutes a “failed” test. This penalty is especially harsh since it does not even require a conviction. Currently, a driver may apply for a Judicial Driving Permit. However, that provision is being phased out and replaced with Monitoring Device Driving Permit (MDDP), which requires the installation of an ignition interlock device. Please see our previous blog posting on this topic.

Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.

Illinois Ignition Interlock Device Law

Public Act 095-0400, signed into law by Governor Rod Blagojevich on August 24, 2007, requires that all first-time DUI arrestees who receive a statutory summary suspension be issued a “Monitoring Device Driving Permit” (MDDP) and be required to drive only vehicles with an ignition interlock device installed. The device will require the driver to blow into it, like a breathalyzer. The vehicle will not start if alcohol is detected. The law will go into effect beginning January 1, 2009. In effect, the law allows a person whose driver's license has been summarily suspended to drive a vehicle as long as an ignition interlock device is installed.

Statutory Summary Suspension
Statutory Summary Suspension is an administrative procedure by which a driver arrested for DUI, who fails or refuses to take a chemical test has his driver's license automatically suspended. An arrested driver fails chemical testing by having a Blood Alcohol Content (BAC) of .08 percent or more (the existence of any amount of marijuana or other controlled substance is also considered a failure). This suspension is automatic, starting the 46th day following the notice date of suspension. Current law provides for a court to order the issuance of a Judicial Driving Permit (JDP) under certain circumstances, which allows a person with a suspended license to drive for limited purposes.

Changes to the Law
Beginning January 1, 2009, a JDP will no longer be available and will be replaced by the MDDP. This permit will be available to all first time DUI offenders as long as the court finds the following:

• The offender's driver's license is otherwise valid;
• No death or great bodily harm resulted from the DUI arrest;
• The offender has not been previously convicted of reckless homicide; and
• The offender is not less than 18 years of age.

Currently, Section Sec. 6-206.1 of the Illinois Criminal Code provides that a JDP may only be granted for “the purpose of employment, receiving drug treatment or medical care, and educational pursuits, where no alternative means of transportation is available.” The new act changes the law to remove those limitations for the MDDP. It provides that a driver with an MDDP can drive “for any purpose and at any time” provided that the person complies with the rules adopted by the Secretary of State as to what is a violation of the MDDP. At a minimum, these rules will provide that a person falls out of compliance when the person does any of the following:

• tampers or attempts to tamper with or circumvent the proper operation of the ignition interlock device;
• provides valid breath samples that register blood alcohol levels in excess of the number of times allowed under the rules;
• fails to provide evidence sufficient to satisfy the Secretary that the ignition interlock device has been installed in the designated vehicle or vehicles; or
• fails to follow any other applicable rules adopted by the Secretary.

The new law actually gives people with a DUI-based Statutory Summary Suspension more rights than under the current system. It allows them to use their vehicles as long as the device is installed whereas, under current law, most of these people would not be allowed to drive at all. Even so, if you were arrested for DUI, you should not wait for the first court date to contact an attorney but should do so immediately. Delay in contacting an attorney can result in the loss of certain rights. Several important things can happen on your case before you go to court for the first time.

Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.

New DUI Technology used by Police in Kane County, Illinois

Drivers in Kane County Illinois should be aware of new technology being used by police officers during routine traffic stops. The device is called a PAS IV “Sniffer.” It senses the presence or absence of alcohol without requiring the driver to blow into a mouthpiece. In fact, it senses the presence of alcohol without any participation by the driver at all. Because the PAS IV is incorporated into a standard-looking police flashlight, a driver may not even know the police officer has used the device to “sniff” for the presence of alcohol.

One may think that this device violates the driver’s Fourth Amendment rights against an unreasonable search and seizure, or at least the driver’s privacy rights under the Due Process Clause of the Constitution. However, last week Associate Judge Allen Anderson of Kane County ruled results from the PAS IV may be used as reasonable suspicion to request that a suspected drunken driver undergo field sobriety tests.

It should be remembered, however, that a driver is not required to participate in field sobriety tests (FST) such as the portable field Breathalyzer, the one-legged stand, or the walk and turn test. Police use these tests to determine whether they have probable cause that the driver was under the influence while driving. Once the officer compiles enough observations to form probable cause, he will arrest the driver. However, there is no refusing the PAS IV. It looks like a flashlight and can detect the presence of alcohol up to 10 inches away; thus the test can be completed before the driver has any opportunity to refuse.

There is good news, however. This device only measures the presence of alcohol. A good DUI attorney can make several arguments to lessen the impact of the results. For example, the presence of alcohol can be attributed to a passenger who has been drinking since the device does not determine the origin of the alcohol.

Also, although this judge ruled that it is legal for the police to use the PAS IV, his ruling seems to contradict the 2001 Supreme Court decision in Kyllo v. US. In Kyllo, the Supreme Court held that police could not use thermal imaging (infrared) scanners to look at homes for evidence of crimes without a warrant. Justice Scalia, writing for the majority, explains the Supreme Court’s reasoning:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use.

The PAS IV works much the same way as the infrared devices in Kyllo. Except for a few narrowly defined exceptions, the police need a warrant to search one’s automobile. It is one thing if the smell of alcohol leaves the vehicle; it is another thing if the police must enter the vehicle to find it. One is constitutional, the other is not.

Thanks for reading. If you have a comment or question, feel free to post a reply, but keep in mind your response will not be confidential. If you need assistance with a traffic violation or offense in the State of Illinois, call our office or send us an e-mail for a confidential consultation.

DuPage County Driver Database

Regarding our previous blog posting about the dismissal of DUI charges against off-duty Chicago police officer John Ardelean, a recent article in the Chicago Tribune states that the case may be reopened. We’ll keep you apprised of any further developments.

Motorists with traffic cases pending in DuPage County take note-an enhanced database has been implemented in DuPage, giving judges and prosecutors information on a driver’s entire driving-violation history, including all prior convictions, supervisions and information on an increasing number of pending cases. The system has been touted as a method of keeping high-risk drivers off the road, as judges will have greater access to the driver’s prior driving history and can take this information into consideration when assessing the appropriate penalty.

Drivers in Illinois are often given court supervision as punishment for traffic offenses. Unfortunately, some drivers who have repeatedly been given court supervision have later gone on to seriously injure or kill others in traffic accidents. To quote DuPage’s State Attorney, Joe Birkett, “The days of automatic court supervision, regardless of your offense, are gone.”

The database currently only contains information for DuPage and DeKalb Counties, but Kane and Will Counties are also considering entering their pending cases, and the database is receiving strong support from Secretary of State Jesse White, judges and prosecutors.

If you have been accused of a traffic violation in the State of Illinois, you need the assistance of an attorney experienced in successfully defending against such charges, whether it be charges of speeding, reckless driving, eluding the police, or failure to yield. Failure to consult an attorney could result in a loss of driving privileges and/or increased insurance rates.

Thanks for reading. If you have a comment or question, feel free to post a reply, but keep in mind your response will not be confidential. If you need assistance with a traffic violation or offense in the State of Illinois, call our office or send us an e-mail for a confidential consultation.

Chicago Officer will not Stand Trial for DUI

Chicago police officer John Ardelean will not stand trial for felony drunk driving in a crash that resulted in two fatalities, after a judge determined that there was “no indication of impairment” and no probable cause for the case to proceed. Prosecutors had argued that the case against the officer should proceed, even though the car the officer hit had run a stop sign. Investigators determined that the officer had fully applied the brakes when the crash occurred in an attempt to avoid the other vehicle.

Surveillance video from a bar showed the officer drinking one shot and “three regular-sized glasses” within a two and a half hour time frame. The bartender testified that the officer did not appear to be drunk. Two witnesses at the crash scene said the officer did appear to be drunk. The accident occurred about 20 minutes after the officer left the bar.

The officer refused to take field sobriety and Breathalyzer tests. A Police Department-ordered test taken almost eight hours later showed a blood alcohol level of .032. Testimony by a doctor with the Illinois State Police estimated the officer’s blood alcohol to be .104 to .177 at the time of the crash-over the legal limit of .08.

The judge rejected the doctor’s assumptions regarding the estimate of the officer’s blood alcohol level and gave greater weight to the testimony of the bartender and the officers investigating the initial accident, who indicated they saw no signs of the officer being drunk.

Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.

Consequences of Driving with a Suspended or Revoked License

In Cook County, Chicago, driving with a suspended or revoked license is generally a Class A misdemeanor. A Class "A" misdemeanor is punishable by up to 364 days in jail, or a fine ranging from $1 to $2,500, or both.

If you are charged with operating a commercial motor vehicle with a suspended license, your license could automatically be revoked.

For further information on the penalties that may apply for driving on a suspended or revoked license, visit the Cook County Court website.

If you have been cited for driving with a suspended or revoked license, you should contact an experienced attorney who can protect your legal rights.

Whatever you do, do not continue driving with a suspended or revoked license. The consequences are simply not worth it.

Thanks for reading my blog.