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.
Friday, June 27, 2008
Tuesday, June 24, 2008
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.
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.
Thursday, June 12, 2008
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.
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.
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