Wednesday, September 29, 2010

Chicago DUI attorney doesn't think the law is a laughing matter

This Chicago DUI attorney thinks it’s time you know that things aren’t always fair.

I was in a pre-sentencing conference with a judge and a couple of prosecutors. 

There was lots of laughter.  It wasn’t funny to me.

My client had been charged with a DUI, more than once.  Each time he was charged with a DUI, the charges have been dismissed.  Unfortunately, his license is suspended.

I’ve posted herehere, and here about the specialized suspension that occurs whenever someone is charged with a DUI.  It’s called a Statutory Summary Suspension.  If a person is charged with driving (not drunk driving, just driving) during the period of Statutory Summary Suspension the penalty from the Secretary of State, is to double the length of the suspension.

So what was the laughter about?  Right now, if there are no changes to the law, my client won’t be able to drive, simply because he was charged with a DUI, for approximately ten years.  One of the sentencing participants has a child under the age of ten.  That child will be able to drive legally before my client can.

Each time he drove, while his license was suspended, based on a DUI arrest that was dismissed, the Secretary of State exacts its pound of flesh.  That’s on top of whatever fines or penalties he paid for the charge of driving while his license was suspended.

Sometimes you win the battles and still lose the war.

Tuesday, September 28, 2010

Chicago DUI attorney isn't surprised that new distracted driving laws may not be working

This Chicago DUI attorney has posted here, here, and here about distracted driving.  Today, she watched it up close and personal.  She was with her husband, who was driving and didn’t have his Bluetooth operating when a call came through for him.  He then tried to drive and turn the Bluetooth on, it failed.  He eventually passed the phone to me and she told the caller we would call him back in a few moments.  She then set up the Bluetooth and dialed the friend for her husband.

Unfortunately, the Secretary of Transportation has his “knickers in a twist” about some recent studies suggesting that the Distracted Driving Laws could cause more accidents.

HLDI researchers calculated rates of collision claims for vehicles up to 9 years old during the months immediately before and after driver texting was banned in California (January 2009), Louisiana (July 2008), Minnesota (August 2008), and Washington (January 2008). Comparable data were collected in nearby states where texting laws weren't substantially changed during the time span of the study. This controlled for possible changes in collision claim rates unrelated to the bans — changes in the number of miles driven due to the economy, seasonal changes in driving patterns, etc.
"Texting bans haven't reduced crashes at all. In a perverse twist, crashes increased in 3 of the 4 states we studied after bans were enacted. It's an indication that texting bans might even increase the risk of texting for drivers who continue to do so despite the laws," says Adrian Lund, president of both HLDI and the Insurance Institute for Highway Safety.
HLDI's new findings about texting, together with the organization's previous finding that hand-held phone bans didn't reduce crashes, "call into question the way policymakers are trying to address the problem of distracted driving crashes," Lund adds.
Noncompliance is a likely reason texting bans aren't reducing crashes. Survey results indicate that many drivers, especially younger ones, shrug off these bans. Among 18-24 year-olds, the group most likely to text, 45 percent reported doing so anyway in states that bar all drivers from texting. This is just shy of the 48 percent of drivers who reported texting in states without bans. Many respondents who knew it was illegal to text said they didn't think police were strongly enforcing the bans.
"But this doesn't explain why crashes increased after texting bans," Lund points out. "If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers' eyes further from the road and for a longer time."
Using a driving simulator, researchers at the University of Glasgow found a sharp decrease in crash likelihood when participants switched from head-down to head-up displays. This suggests that it might be more hazardous for a driver to text from a device that's hidden from view on the lap or vehicle seat.
Perhaps there were sufficient laws already to deal with this issue that covered a wide-range of bad driving including eating, reading the newspaper, or changing the station on the radio.

Monday, September 27, 2010

Chicago DUI attorney comments on the relationship between the Dream Act and driving

Sometimes this Chicago DUI attorney has to give her clients bad news.  She's posted here, here, and here about the intersection of criminal law and immigration.  One of my clients can’t get a license until, and unless, the law of the land changes.  It’s really not his fault he can’t get a license.  He’s been in this country since he was wearing diapers.

While many of us struggle over the issue of undocumented folks, we really do need a different category to address people like my client.

Currently, there is a bill waiting to be passed that would address the hordes of people like my client.

The purpose of the Development, Relief and Education of Alien Minors Act, also called the DREAM Act, is to help those individuals who meet certain requirements, have an opportunity to enlist in the military or go to college and have a path to citizenship which they otherwise would not have without this legislation. Supporters of the DREAM Act believe it is vital not only to the people who would benefit from it, but also the United States as a whole. It would give an opportunity to undocumented immigrant students who have been living in the U.S. since they were young, a chance to contribute back to the country that has given so much to them and a chance to utilize their hard earned education and talents.
Would I qualify?
The following is a list of specific requirements one would need in order to qualify for the current version of the DREAM Act.
§                                 Must have entered the United States before the age of 16 (i.e. 15 and younger)
§                                 Must have been present in the United States for at least five (5) consecutive years prior to enactment of the bill
§                                 Must have graduated from a United States high school, or have obtained a GED, or have been accepted into an institution of higher education (i.e. college/university)
§                                 Must be between the ages of 12 and 35 at the time of application
§                                 Must have good moral character

My client asked me when the Dream Act will become a law.  I told him soon, as I held up so he could see my crossed fingers.

Sunday, September 26, 2010

Chicago DUI attorney thinks LILO may have been treated differently, but not necessarily better, than other offenders

This Chicago DUI attorney has posted here, here, and here about LILO, unfortunately she’s back in the news and it’s not for her acting abilities.

Lindsay Lohan's journey to jail Friday on a 30-day hold -- only to be released hours later -- has raised new questions about whether the actress is being treated differently than other inmates.
On Friday morning, Beverly Hills Judge Elden Fox ordered Lohan jailed without bail until a hearing Oct. 22 on whether Lohan should be incarcerated for using drugs in violation of her probation on a drunk-driving conviction. 
It also appeared to be an effective way to skirt Los Angeles County's early release policy and keep Lohan incarcerated for a month. The 24-year-old actress has twice received jail sentences but both times served less time than ordered because of overcrowding at the women's jail. Most female inmates serve a quarter of their sentence.
But Lohan's attorney, Shawn Chapman Holley, immediately challenged the legality of holding her client without bail based on a probation violation for a misdemeanor. On Friday afternoon, another judge granted Lohan $300,000 bail, and she was able to leave jail.
Attorney Mark Geragos said it was not unusual for a judge to deny bail on a probation violation and set a date for a hearing in the time it might take to serve a full jail sentence.
"More and more judges are doing this very thing to ensure the sheriff doesn't release the person early," Geragos said.
Veteran defense attorney Glen Jonas said the judge's actions effectively side-stepped the early-release process, which covers inmates sentenced to jail time but not to inmates awaiting sentencing.
 So what happens here in Chicagoland?  It’s pretty similar except in my experience many wouldn’t be held without bail for violating the terms and conditions of their sentence.  Instead, they would simply be re-sentenced with a conviction being entered.  The problem with the conviction is that it revokes driving privileges.

Thursday, September 23, 2010

Chicago DUI attorney thinks sometimes justice is served--even if it is unpopular

This Chicago DUI attorney has posted here and here about the ever increasing consequences of a DUI.  Now it appears one person has finally found a court that thought the sentence was excessive.

The Illinois Appellate Court has overturned an Aurora man’s sentence for Class X drunken driving, saying conflicting state laws may have sent him to prison for too long.
In 2006, J.D. Clark, 63, was sentenced to a little more than 6-1/2 years in prison after he was convicted of drunken driving for the eighth time. He was the first person convicted of Class X drunken driving in Kane County, a new charge aimed at repeat offenders.
At the time, Illinois law specified that anyone convicted of six or more drunken driving charges would be eligible for a Class X felony. But the statutes also said anyone convicted of drunken driving five or more times would be eligible to be charged with a Class 1 felony. Technically, Clark met both of those ranges.
The sentence range for a Class X felony is six to 30 years. The range of sentences for a Class 1 felony is four to 15 years.
In an opinion posted this week, the court upheld Clark’s conviction, but ruled that he must be re-sentenced under the Class 1 guidelines because it is the more lenient of the options.
Some people think that Clark’s behavior was so egregious that the sentence should stand.  Unfortunately, the reporting didn’t make it clear that the justices didn’t reduce his sentence but changed the Class of Offense he could be sentenced under based on changes in the law.
From People v. Clark, No. 2-08-0993:
 Defendant's first claim of error was resolved in Maldonado, in which we held that Public Act 94--114 conflicted irreconcilably with Public Act 94--116 (Pub. Act 94--116, §5, eff. January 1, 2006), which made a fifth or subsequent DUI a Class 1 felony (see 625 ILCS 5/11--501(c--1)(4)(West 2006)). Under the rule of lenity (see People v. Hillenbrand, 121 Ill. 2d 537, 560 (1988)), we resolved the conflict in favor of the lesser penalty. Maldonado, slip op. at 10. We do the same here.
In urging affirmance, the State raises arguments that we rejected in Maldonado. As we are still unpersuaded by these arguments, and out of respect for the principle of stare decisis (see People v. Williams, 235 Ill. 2d 286, 294-95 (2009)), we follow Maldonado. We affirm defendant's conviction of DUI but reduce it to a Class 1 felony and remand for resentencing.
 The court is simply looking to treat the defendant in the same manner as all other similar defendants would be treated.  That’s what we call in this country, justice.

Wednesday, September 22, 2010

Chicago DUI attorney thinks bad things happen when designated drivers are refused

This Chicago DUI attorney has posted here and here about designated drivers.  She’s always thought they were a stellar idea.  Apparently, everyone doesn’t agree with her on this matter.

September 22, New York, NY:
Jets receiver Braylon Edwards was arrested and charged with drunken driving after a traffic stop early Tuesday morning, the Jets confirmed on their Web site.
Edwards, 27, was pulled over on the West Side of Manhattan at 5:15 a.m. for having excessively tinted windows, the police said, and a subsequent Breathalyzer test measured his blood alcohol at 0.16. That is double New York’s legal limit.
Jets employees were on hand as the players arrived and exited and the team pointed out in its statement that it provides transportation and security for players attending events in New York.
It just goes to show that having a designated driver still isn’t a guarantee that will prevent some from attempting to operate a vehicle after drinking.

Tuesday, September 21, 2010

Chicago DUI attorney comments on the increasing reach of the Distracted Driving campaign

This Chicago DUI attorney has posted here, here, and here about distracted driving.

Today marks the second Distracted Driving Summit held in Washington D.C.

We have so much to discuss today because, last year, distraction-related crashes killed at least 5,500 people and injured more than 450,000 others.
But those statistics don't even begin to tell the real story of this deadly epidemic. Each one of those 5,500 killed means an uninvited telephone call from a state trooper. Each one of those nearly half a million injured may mean months of painful rehabilitation.
Yesterday, I met with more than a dozen victims of distracted driving--daughters who lost parents, mothers and fathers who lost children. And today, those brave family members will gather at the summit and tell their stories in the hope that someone will listen, that someone will nod in agreement and say, "She's right; that text message or that cell phone call is not worth it."
The research presented today will confirm what I've been saying over and over for the past 12 months: you cannot text or talk on the phone while driving safely. You just can't do it.

Whoa!  Did you read that?  Yep, we’ve gone from an anti-texting and driving stance that has been expanded to include talking on the phone while driving.  Please note, there’s no mention of talking on a headset being safer.

Friday, September 17, 2010

Chicago DUI attorney wonders what's going on in the city tonight

This Chicago DUI attorney  was literally out walking her dog a few moments ago.  She's posted here, here, and here about roadside safety checks.  While there is one scheduled tonight in the 11th District there’s quite a bit of action in the 18th District right now.

An array of marked cars, SUV’s and a tow truck are on apparent standby at Clybourn just north of Division St. 

Wonder what they are up to tonight?  Be careful out there!

Thursday, September 16, 2010

Chicago DUI attorney comments on the return of Prohibition

This Chicago DUI attorney has posted herehere, and here about no refusal weekends.  What if you were found guilty of a DUI?  Do you think you shouldn’t be able to consume any alcohol whatsoever? 

September 15, Chicago, IL:
Some convicted drunk drivers in Kane County may have trouble making plans for upcoming holidays because they’ll be busy doing something else: getting tested to see if they’re drinking alcohol.
A new Kane County program means some DUI offenders must take breath tests up to eight times during holiday weekends to confirm they are avoiding alcohol as required by their court sentences.
The Holiday Alcohol Testing program unveiled during the Labor Day weekend is designed to discourage DUI offenders from taking a drink at a time when they’re likely to be more vulnerable — during a long holiday weekend.
“It’s a matter of people making a choice about the consequences of taking a drink,” said State’s Attorney John Barsanti, who rolled out the program, the first of its kind in Illinois.
During the Labor Day weekend, 17 DUI offenders banned from drinking while on probation or court supervision were required to report for eight breath tests between Sept. 3 and Sept. 7.
Doesn't it sound like the 21st Century version of prohibition?

Tuesday, September 14, 2010

Chicago DUI attorney sees another nail in the coffin of property owners

This Chicago DUI attorney has posted here, here, and here about forfeiture.

Forfeiture means you give up your property based on a crime.  Most of the time we think about drug dealers losing big fancy homes or cars when we think about the government taking property but did you know you could lose your car for driving while your license is revoked?

From People of the State of Illinois vs. One 1998 Lexus GS 300, No.  1-09-0444:
Claimant first contends on appeal that discretionary
language and terms such as "subject to seizure and forfeiture"
found in subsection (g) of section 6-303 of the Vehicle Code
require trial courts to consider mitigating evidence prior to
awarding forfeiture of a subject vehicle. Claimant maintains
that the legislative intent behind the vehicle forfeiture
statutes is aimed at drivers who fail to stop using alcohol or
controlled drugs or drivers who fail to stop committing crimes
while under the influence of these substances.
Claimant argues that the necessary nexus for a valid
forfeiture is an alcohol- or drug-impaired driver, driving on a
revoked license. In this regard, claimant contends that in
awarding forfeiture of his vehicle, the trial court erroneously
ignored mitigating evidence of his alcohol rehabilitation and
evidence that he was not driving under the influence of alcohol
when he was stopped and arrested. Claimant also contends the
trial court failed to consider that he had completed the
statutory requirements both in Illinois and Georgia to have his
license reinstated. We must reject claimant's contentions.

The court goes on to reject claimant’s argument that the forfeiture of his vehicle violates the Eighth Amendment which prohibits cruel and/or excessive punishment both via fines or imprisonment.

Monday, September 13, 2010

Chicago DUI attorney comments on the Illini's DUI arrest

This Chicago DUI attorney has posted here, here, and here about the consequences of a DUI arrest.

It’s time to add another.  You could find yourself off the team if you are a star college athlete.  Guess what?  That could jeopardize your ability to continue to get your college education.

Illinois starting Bandit Michael Buchanan was suspended indefinitely after his weekend arrest for DUI.
Buchanan, a sophomore from Homewood-Flossmoor, won’t play against Southern Illinois on Saturday night and could miss more games.
So does it really matter if you are not guilty of the DUI charges if in the interim you lose your job or ability to go to school?

Wednesday, September 8, 2010

Chicago DUI attorney comments on the frightening consequences of mistakes

This Chicago DUI lawyer has noted errors every year in driving records.  She doesn’t mean little errors but huge errors, like a DUI being dismissed, but showing as a conviction that could mean all the world to whether a client remains free or goes to jail or even prison.

Imagine if you began to think you were being profiled for a criminal charge that was dismissed against you?  How would you feel?

A State Journal-Register reporter who covered a murder trial in Quincy last spring believes he was targeted by law enforcement because of news articles he wrote about the trial, his lawyer says.
Records show that Bruce Rushton had just finished covering the Shirley Skinner murder trial for The State Journal-Register in Quincy on May 6 when he was pulled over outside the Adams County Courthouse and charged with driving with a suspended license and disregarding a stop sign.
The license-related charge was dropped, but the incident has prompted a legal effort by Rushton, 46, to determine why he was stopped in the first place and to get the stop sign ticket dismissed. His attorneys are seeking information on law enforcement radio traffic and usage of a database used to check criminal records.
The stop sign charge is scheduled for an Oct. 12 court date in Quincy, said Dan Fultz, the attorney handling that part of the case. Rushton has retained Springfield lawyer Don Craven to help gain access to official records under the Freedom of Information Act.
“I’m not guilty of all charges and look forward to proving my innocence,” Rushton said. “Any further comments will have to come from my lawyer.”
“There is some concern he is being targeted,” Fultz said of Rushton. “That appears to be one of the motivations, but I don’t have anything to verify it at this point.”
Fultz said at issue is how the National Crime Information Center database was used to check Rushton’s driving record before the traffic stop.
Records show that Ashland Police Chief Jim Birdsell used the system to run a check on Rushton’s name on May 4, two days before the traffic stop in Quincy. At the time Birdsell ran the check in Ashland, Rushton was in Quincy, Fultz said.
Records reviewed by the newspaper showed Birdsell ran the first check of Rushton’s name in NCIC at 9:04 p.m. May 4. Birdsell says he was acting on a tip when he told Illinois State Police that Rushton’s driver’s license might be suspended because of a DUI charge.
“Somebody told me he had gotten a DUI in Sangamon County,” Birdsell said. “Whenever I get that kind of information, I verify it before I act on it. The computer showed he was suspended, and because he was in Adams County out of my jurisdiction, I just passed it on to the state police.”
Rushton was arrested and charged with DUI and speeding after a traffic stop in Springfield on Oct. 18, 2009. The DUI charge was dismissed due to insufficient evidence at the request of the Sangamon County state’s attorney’s office on Nov. 6. Rushton pleaded guilty to speeding and paid $200 in fines and court costs.
A motion filed by Fultz to reinstate Rushton's driver’s license was granted Nov. 6, but the suspension was still listed in the system when Birdsell checked Rushton's name.
You should treat your driving record like your credit report.  Check it on a regular basis to make sure there aren’t any errors that could cause you to be arrested.

Tuesday, September 7, 2010

Chicago DUI attorney comments on judges grousing about the law

This Chicago DUI attorney was prepared.  Prepared that the judge might not follow the law, she even warned her client. 

Earlier last week, she had a judge attempt to barter her legal representation of her client in exchange for the judge signing off on the MDDP.

In open court, the judge expressed his outrage that the legislators were forcing him to sign the MDDP.  You already know that the MDDP permits the accused to drive a vehicle while the case is pending with a BAIID installed.  Yes he signed it but the experience was humiliating.

Really, if the concern of the state is met, that the roads are kept safe from those who drive under the influence of alcohol, then why on earth would any judge refuse to sign off on an MDDP? 

There would be a lot of irony if the accused was charged with a subsequent DUI when that could have been precluded if the judge had followed the law.

Monday, September 6, 2010

Chicago DUI attorney comments on driver's licenses and perseverance

This Chicago DUI attorney thinks perseverance counts an awful lot.

Do you even remember what it was like when you finally got your driver’s license?

I do.  Friends may laugh but I didn’t pass it the first time, when I was fifteen, because South Carolina required parallel parking.  I think that initial trauma is why I’m pretty good at getting into and out of some of the smallest parking spaces in this city.  It’s also amusing because I don’t think I’m a decent measurer, by sight, of much else besides a parking space.

Can you imagine what it must feel like to have to take the driving test again and again and again and again and again before finally getting your driver’s license?

This diminutive woman, now known nationwide as “Grandma Cha Sa-soon,” has achieved a record that causes people here to first shake their heads with astonishment and then smile: She failed her driver’s test hundreds of times but never gave up. Finally, she got her license — on her 960th try.
For three years starting in April 2005, she took the test once a day five days a week. After that, her pace slowed, to about twice a week. But she never quit.
Hers is a fame based not only on sheer doggedness, a quality held in high esteem by Koreans, but also on the universal human sympathy for a monumental — and in her case, cheerful — loser.
“When she finally got her license, we all went out in cheers and hugged her, giving her flowers,” said Park Su-yeon, an instructor at Jeonbuk Driving School, which Ms. Cha once attended. “It felt like a huge burden falling off our back. We didn’t have the guts to tell her to quit because she kept showing up.”
WHEN word began spreading last year of the woman who was still taking the test after failing it more than 700 times, reporters traced her to Sinchon, where the bus, the only means of public transportation, comes by once every two hours on a street so narrow it has to pull over to let other vehicles pass.
They followed her to the test site in the city of Jeonju, an hour away. There, they also videotaped her in the market, where she sells her home-grown vegetables at an open-air stall.
Once she finally got her license, in May, Hyundai-Kia Automotive Group, South Korea’s leading carmaker, started an online campaign asking people to post messages of congratulations. Thousands poured in. In early August, Hyundai presented Ms. Cha with a $16,800 car.
This gives a whole new meaning to the old saying that if at first you don’t succeed you try, try again.

Friday, September 3, 2010

Chicago DUI attorney comments on holidays, taking tests, and driving

This Chicago DUI attorney had it happen again tonight.  A big guy asked me what he should do if he gets stopped tonight, should he blow or not?

This is a holiday weekend so the police are going to be out in force conducting DUI sobriety checks, roadside safety checks, and general increased patrol. 

The Chicago Police Department will conduct a Roadside Safety Check in the Austin
(009th) District at 5301 S. Ashland. The Roadside Safety Check will commence at 8:00 p.m.
on Friday, September 3, 2010 and end at 4:00 a.m. on Saturday, September 4, 2010.

During roadside checks, police officers slow down traffic, stop cars at regular intervals
and watch for drivers who show signs of alcohol impairment and other violations as noted

They know you are out there, so “let’s be careful out there folks”.

As for the answer to the big guy’s question, what I always tell my clients is if you plan on driving, you shouldn’t have anything to drink.  It’s not because you are drunk or impaired, it’s just that if you get stopped by the police and they smell alcohol, I think you will end up needing me to represent you.

Wednesday, September 1, 2010

Chicago DUI attorney comments on DUI driving permits and judges

This Chicago DUI attorney has posted here and here about the MDDP.  This program permits people accused of DUI to drive, as long as they drive a vehicle that has an installed BAIID.

Lately, there’s been a glitch in the program.  It seems judges are refusing to sign the permit.  All over the state judges have erroneously come to the conclusion that they get to decide whether a MDDP is issued. 

 There’s even one judge who routinely asks each defendant before him why on earth he should sign off on the MDDP.  Once this judge is satisfied that the defendant understands the judge doesn’t want to sign it, the judge follows the law and signs that MDDP.  Of course, that’s after he’s given the defendant and the court a piece of his mind about this situation.

This burden responsibility wasn’t supposed to belong to the judges at all. It’s really a very simple form that permits the accused to opt-into the MDDP or opt-out.  Luckily there is a movement afoot to remove the signature of the judges from the MDDP, no surprise if it’s discovered that the judges are all for this change.