Monday, December 28, 2009

Chicago DUI lawyer comments on Twitter and DUI checkpoints

This Chicago DUI lawyer has posted on DUI checkpoints here, here, and here. Now comes news, why am I not surprised, that the police don't really want you to know about DUI checkpoints.

In a ritual nearly as familiar as Santa Claus and crowded stores, Valley police agencies have again stepped up enforcement of drunken-driving laws this holiday season.

Backed by state grants, police are setting up more sobriety checkpoints and putting more officers on the street -- not only to catch intoxicated drivers but also to educate the public. Studies have found sobriety checkpoints reduce alcohol-related crashes because they create awareness about the risk of arrest.

But some public-safety officials say that message might be lost on the group most at risk -- young drivers. Trying to elude arrest for drunken driving, young people use technology to keep each other informed about the location of sobriety checkpoints, said Sgt. Dave Gibeault, head of the Fresno Police Department's traffic unit.

Tools include Twitter, text messages and an iPhone application specifically designed to identify checkpoints, Gibeault said.

His own daughter often sends him text messages about where she's heard he's running checkpoints.

But changing the checkpoints can be a problem, Gibeault said. Police can't easily move them once their location has been broadcast, because of legal requirements and the large number of officers and equipment involved, he said.

Here are a few tweets regarding checkpoints. Let me be clear you either have to follow these folks on Twitter to get these tweets or you have to set up a search in twitter to alert you when a tweet with this subject matter occurs.

aaronjon SFPD DUI checkpoint on 10th st between Mission an Bryant.about 5 hours ago from Twitterrific

BigDaddyCoolJ RT: @itzrealJUICY: @MistaFuture: DUIcheckpoint on Crenshaw after safe..retweet1 day ago from web
SF DUI check point at 10th & Howard. FYI

Seriously, its okay for the police to alert the public but its not okay for citizens to alert each other of a checkpoint?

Tuesday, December 22, 2009

Chicago DUI lawyer comments on another DUI accident involving a cop

Unfortunately, this Chicago DUI lawyer has posted here, here, and here about cops in Chicago with DUI arrests and fatal accidents. Now comes news of yet another cop charged with DUI in a fatal crash.

Lockport officer Eddie Stapinski, a 34-year-old with seven years of service, remained in Illinois State Police custody at Mount Sinai Monday night, where he was being treated for cuts on his face and head, and a possible broken pelvis.

He was charged with reckless homicide and an aggravated DUI Monday evening and is due to appear before a judge at Bridgeview Courthouse this morning, Cook County State's Attorney spokesman Andy Conklin said.

Stapinski's grandmother, Mildred Stapinski, told the Chicago Sun-Times that he was drinking at a bar in Chicago while watching the Chicago Blackhawks beat the Detroit Red Wings before the accident.

"He always watches the games in Chicago -- I don't know why he does that," she said.

So much for not drinking and driving. As a commenter of the article posted:

So he always got drunk in Chicago and drove home after watching a Blackhawk's game...and his family members knew it. Nice.

12/22/2009 6:34 AM CST on
Looks like grandma's comments to the media are not going to help in the defense of this tragedy.

Monday, December 21, 2009

Chicago DUI lawyer thanks Taxgirl for this special guest post on DUI's and tax write-offs

Bad things can happen to good people. And when they happen, you can generally catch something of a break in the way of a casualty loss filed with the IRS. The casualty loss deduction allows you to write off damage, destruction or loss of your property from any sudden, unexpected, and unusual event such - usually a flood, hurricane, tornado, fire, earthquake or even the massive snowstorm we just encountered on the east coast this weekend.

Oh - and driving drunk.

Yes, in a decision that astounded tax professionals everywhere, the U.S. Tax Court allowed the owner of a car to write off thousands of dollars after he totaled it while driving under the influence.

The taxpayer, Justin M. Rohrs, bought a 2006 Ford F-350 pickup truck for $40,210 in 2005. Just over two months after he purchased the truck, he went to a party at a friend's house. He drank at the party but had a driver take him back to his house. He then decided to drive his own vehicle, the Ford truck, to his parents' house. During the ride to his parents' house, he rolled the truck over, totaling the truck and landing him in the hospital.

Rohrs' blood alcohol limit following the crash was .09, just over the legal limit in California. As a result, Rohrs was cited for the crash.

Rohrs filed a loss with his insurance carrier. The carrier, not surprisingly, turned him down because of the citation.

So Rohrs decided to collect another way: he filed for a casualty loss deduction on his tax return. Assuming that the truck was personal-use property, the amount of the casualty loss would have been the lesser of the adjusted basis of the property (the cost of the truck), or the decrease in fair market value of the property as a result of the casualty (generally, the value of the truck at the time of the accident, taking into account any improvements or depreciation), less $100. Rohrs figured this amount to be $33,629 and reported it on a federal form 4864, Casualties and Thefts.

The IRS issued a notice of deficiency to Rohrs, disallowing the casualty loss deduction, and assessing a $6,230 income tax deficiency in addition to a $1,246 section 6662(a) accuracy-related penalty for the 2005 tax year. As a result, Rohrs decided to take the matter to court and he did it on his own: Rohrs represented himself in court against the IRS.

The case turned on whether Rohrs' drunk driving was willful. The IRS relied on section 1.165-7(a)(3), Income Tax Regs., which you can claim a casualty loss for damage to a vehicle if the damage is not due to the willful act or willful negligence of a taxpayer. So case closed, right? After all, Rohrs was admittedly drinking and he was cited.

Not so fast. The judge, remarkably, found that "[w]hile petitioner’s decision to drive after drinking was negligent, that alone does not automatically rise to the level of gross negligence." The judge found that "the level of intoxication and the quality of the driving has to be taken into consideration." The judge believed Rohrs when he argued that he didn't know he was drunk when he got into his truck, and that his drinking may not have been the cause of the accident. After all, the judge wrote, Rohrs was just "slightly over California’s legal limit of 0.08 percent."

In other words, being just a little drunk is apparently enough for the IRS, the police and the insurance company but not for Tax Court.

As a result of his actions, which the judge found to be negligent but not willful, the deduction was allowed and the penalty was reversed.

So, good news, right? For Rohrs, sure, but not necessarily for other taxpayers. The Tax Court opinion, while certainly interesting reading, cannot be treated as precedent for other cases (IRC section 7463(b)). In other words, don't rely on the same thing happening twice: your judge may not be as sympathetic.

You can read the entire TC Opinion here (note that it downloads as a pdf).


Kelly Phillips Erb is a founding shareholder of The Erb Law Firm, PC, in Philadelphia, PA, where she focuses on tax law for businesses and families. Kelly authors the popular tax blog, taxgirl, cited in 2008 and 2009 as one of the top 100 legal blogs by the ABA Journal.

Tuesday, December 15, 2009

Chicago DUI lawyer says going once, going twice, sold! The DUI motorized bar stool

This Chicago DUI lawyer has posted here and here on a DUI with a motorized bar stool. Now comes the news that the recession has hit the auction world as well and the chair sold for a dismal $1,100.



This is the motorized bar stool that was featured nationwide when a local resident was charged with a DUI after he crashed and sustained injuries while driving around his neighborhood. After the story broke a local country music artist composed a song about it. Even Ripley’s Believe It or Not wanted this one-of-a-kind item and now it can be yours!

This (in)famous bar stool was confiscated by the Licking County Sheriff’s Department in Newark, Ohio on behalf of the Licking County Child Support Enforcement Agency.

All proceeds of this auction will go towards satisfying the $37,000 in overdue child support incurred by the previous owner.

Well, in this case looks like the government will make more off of whatever court fees and fines Mr. Wygle has to pay for his DUI than on the forfeiture of his vehicle.

Monday, December 14, 2009

Chicago DUI lawyer provides an update on Lake County judge's DUI

This Chicago DUI lawyer has posted here, here, and here about the Lake County judge charged with a DUI. Now comes news that his blood alcohol results have been released.

The night that Lake County Chief Judge David Hall was pulled over by Vernon Hills police, his blood-alcohol level was 0.107, Hall's attorney said minutes after a judge approved unsealing the record Monday.

Hall, charged with driving under the influence and resisting arrest on April 26, 2008, was in court Monday to pursue records from Advocate Condell Medical Center in Libertyvillefor his defense.

Hall stepped down as chief judge but still hears cases at the Lake County Courthouse.

Police Officer Jesse Goldsmith, who stopped Hall, died of a
heart attack in June 2008. Goldsmith completed much of the paperwork and likely would have been the key prosecution witness at trial.

Another officer, Mark Sosnoski, who backed up Goldsmith from a different vehicle, is expected to testify.
It's still odd that this case is going forward despite the prosecution's primary witness being dead. This will not be an easy case, even with the BAC being known.

Thursday, December 10, 2009

Chicago DUI lawyer comments on the significance of a DUI on immigration status

This Chicago DUI lawyer has represented immigrants before and will continue to do so. There's always extra time spent with any client I have if they are a non-citizen of this country. There are additional considerations for every non-citizen with a criminal charge in Illinois. Any plea of guilt or finding of guilt could give cause to deportation proceedings or a denial of citizenship or permanent resident status. Most recently, these issues were at the forefront of the Chicago DUI case of Rigo Padilla(he was not my client). Mr. Padilla was charged with a DUI and came to the attention of Immigration and Customs Enforcement (ICE) before he was ever arraigned on the DUI charge as I posted here. Now comes news that Mr. Padilla has won a stay of deportation

Rigo Padilla, the undocumented student whose fight to stay in the country has ignited a movement on his behalf, says he has been allowed to stay in the United States for one more year.

The apparent reprieve -- which U.S. Immigration and Customs Enforcement would not immediately confirm -- came less than a week before Padilla, 21, was supposed to leave Dec. 16 for his native Mexico, where he hasn't been since he was 6.

"It's official," Padilla said this morning after his lawyer met with immigration officials in Chicago. He smiled ear-to-ear as he held up a letter from ICE confirming his application for a one-year stay was granted.

"I promise that I'm going to work hard and go to school and graduate from college," he said. "I hope my case can be an example" of the thousands of other undocumented immigrants hoping to stay in the country long enough to potentially win permanent legal status under immigration reform.

Padilla's immigration status was discovered when he was arrested for drinking and driving earlier this year. The decision to stay the deportation of came during a meeting with ICE officials in Chicago today.

It is true, non-citizens with criminal charges do face additional challenges based on their status. In Illinois, an admonishment is given at sentencing to any non-citizen, and in my experience, citizens as well, as codified by law at 725 ILCS 5/113-8. Here is the admonishment:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States."

While Mr. Padilla now knows at least what to expect for the next year, there are hundreds, if not thousands, of Illinois defendants who wait in limbo about the impact their immigration status may have on criminal charges against them.

Wednesday, December 9, 2009

Chicago DUI lawyer comments on the DUI in a buggy powered by a horse

This Chicago DUI lawyer has posted here, here, and here on DUI's that aren't in traditional vehicles. Now comes the news that an Amish man has been charged with a DUI in a horse-drawn buggy.

A slow-moving horse and buggy led to the arrest Sunday night of a Paradise man, who was charged with drunken driving.

Perry pounded on the buggy door until Fisher woke up.

Police said Fisher showed signs of intoxication, including a strong smell of alcohol on his breath and bloodshot, watery eyes.

Police said they administered a breathalyzer test, which showed Fisher's blood-alcohol content was 0.18 percent. Pennsylvania residents are considered legally intoxicated if their blood-alcohol content is 0.08 or above.

I'm wondering if Pennsylvania will follow the lead of Georgia and dismiss this case.

Tuesday, December 8, 2009

Chicago DUI lawyer provides an update on Tiger Woods' non-DUI

This Chicago DUI lawyer has posted here about DUI's without alcohol or illegal drugs involved. Now comes more news that Tiger Woods took a Mulligan on a DUI charge after his car accident a few weeks ago.

December 7, Orlando, FL

Investigators suspected that golfer Tiger Woods was under the influence when he crashed his SUV outside his Isleworth home, but an attempt to collect medical evidence was denied by the Orange-Osceola State Attorney's Office, according to a law-enforcement document.

A witness who pulled Woods out of the Cadillac Escalade said the golfer "consumed alcohol earlier in the day" before the Nov. 27 accident, the record released by the State Attorney's Office said. The unnamed witness also said Woods had been prescribed Ambien, a drug used to treat insomnia, and
Vicodin, a painkiller.

The witness is not identified by name in the document released Monday.
Confirmation that Woods was a DUI suspect was part of a one-page, Nov. 30 request by FHP Trooper Joshua A. Evans to the State Attorney's Office. Evans asked for help obtaining a subpoena for "medical blood results" from Health Central Hospital in Ocoee, where Woods was treated after the accident.

Assistant State Attorney Steve Foster, head of the State Attorney's Office's intake division, denied the request because of "insufficient information," the document states.
o be successful, a subpoena request must prove there is "probable cause" to think a crime has been committed, experts said.

In a Florida DUI case, the smell of alcohol on a driver's breath or evidence that prescription drugs were consumed are not enough by themselves to constitute probable cause.

Investigators must also show a suspect's "normal faculties" — the ability to walk, talk and make decisions in emergencies — have been impaired, said Stuart Hyman, a local attorney who specializes in drunken-driving cases.

"Suspicion is not the same as probable cause," said Hyman, who declined to discuss the specifics of Woods' case.

There are many who believe that Tiger Woods was given a break because he is a celebrity, that doesn't matter. What matters is that you can be charged with a DUI for using a prescribed medicine and operating a motor vehicle.

Monday, December 7, 2009

Chicago DUI lawyer comments on Secretary of Transportation's holiday DUI message

This Chicago DUI lawyer does have annual holiday safe driving tips. Don't worry, they will be posted soon. Now comes news from Secretary of Transportation on the ease of avoiding a DUI:

#drunkdriving isn’t a law enforcement problem; it’s a personal responsibility problem. Please be safe.

Secretary LaHood's link leads to the following post on his website:
But this isn’t just a law enforcement problem. It’s really about people taking responsibility for their own behavior.

It’s up to every single driver in this country--from the newly licensed to the most experienced--to turn the key in the ignition only when absolutely sober.

Thank you. And I wish everyone a very happy, healthy, safe holiday season.

Somehow, I don't think Secretary LaHood knows you can be charged with a DUI even if the key isn't in the ignition.

Thursday, December 3, 2009

Chicago DUI lawyer gets DUI conviction removed

This Chicago DUI lawyer has great news! Another client with an erroneous DUI conviction has his driving privileges restored and the DUI conviction is gone. I've posted here about the problem with accepting the official record without due diligence.

After interviewing the client, reviewing his criminal background and his driving abstract I discovered that the conviction entered against him was in error. The conviction was removed, yes it required going before a judge and having a corrected court order, and my client was able to get his driver's license back.

Now he can concentrate on his work and family without wondering how he is going to get back and forth to work.

Wednesday, December 2, 2009

Chicago DUI lawyer comments on additional penalties for high BAC DUIs

This Chicago DUI lawyer has posted here, here, and here about the increasing penalties for DUI offenders. Did you know that the penalties even increase based on the amount of alcohol in one's breath or blood at the time of the offense?

625ILCS 5/11-501(c)(4):

A person who violates subsection (a) a first time, if the alcohol concentration in his or her blood, breath, or urine was 0.16 or more based on the definition of blood, breath, or urine units in Section 11‑501.2, shall be subject, in addition to any other penalty that may be imposed, to a mandatory minimum of 100 hours of community service and a mandatory minimum fine of $500.

Did you notice that the penalty is for a first-time offender? There's no comparable penalty for a DUI without blood, breath, or urine units for a first time offender equally situated. The additional penalty is solely for cooperating with the police and submitting to those tests.

Chicago DUI lawyer comments on high blood alcohol contents

This Chicago DUI lawyer has posted here, here, and here about blood draws. Now comes news of a record high blood alcohol content in a DUI arrest.

A YOUNG woman has stunned police by recording a blood alcohol content of 0.385 - one of the highest levels ever recorded.

Police said they subjected the woman to a roadside screening before she was taken to the Canberra Hospital.

The 0.385 reading was 19 times [above] the permitted blood alcohol level - she is a P-plate driver which permits a reading of only 0.02.
Since she was conscious, there's always the possibility that the blood results are wrong, but I doubt anyone wants to explore that avenue.

Monday, November 30, 2009

Chicago DUI lawyer comments on the stiffer penalties for DUI

This Chicago DUI lawyer posted here and here about significant changes to Illinois DUI laws.

Under these new laws, people are being sentenced to jail, as required by state legislators, for driving while their license is suspended based on a DUI arrest. The license suspension is triggered by the Statutory Summary Suspension. Statutory Summary Suspension is only for DUI arrests. If a first-time DUI accused submits to testing by breath, blood, or alcohol and is over the legal limit of .08 the license will be suspended for six months. If the accused refuses to submit to these tests the license will be suspended for one year.

Some of you are already wondering how is that any different than the way the law used to be in such cases. It used to be a first time offender had a choice between community service and jail. It used to be a first time offender would be charged with a misdemeanor but the ripple effect of the changes to DUI law are great.

Currently in Illinois, if you are charged with driving while your license is suspended based on a DUI arrest (note I said arrest, not a conviction) and you could have been driving legally with an Interlock Ignition Device installed in your vehicle, the minimum sentence is 10 days in jail and it is a class 4 felony.

625 ILCS 5/6-303 (c) (3)- Any person convicted of a violation of this Section during a period of summary suspension imposed pursuant to Section 11‑501.1 when the person was eligible for a MDDP shall be guilty of a Class 4 felony and shall serve a minimum term of imprisonment of 30 days.

I just don't get why some folks think a DUI is no big deal. It is.

Saturday, November 28, 2009

Chicago DUI lawyer comments on Tiger Woods' non-DUI

This Chicago DUI lawyer knows it's a slow news day, but anytime "America's son", Tiger Woods, is in the news the day isn't slow. Unfortunately, he wasn't in the news for his prowess on the golf course. He ended up going to the hospital and being treated and released for minor facial lacerations. Initially, it was reported that the lacerations were from a car accident. Now it appears there maybe more to it than that.


Tiger has yet to be formally interviewed by the Florida Highway Patrol -- that should happen this afternoon. But we're told Tiger had a conversation Friday -- with a non-law enforcement type -- detailing what went down before his Escalade hit a fire hydrant.

We're told he said his wife had confronted him about reports that he was seeing another woman. The argument got heated and, according to our source, she scratched his face up. We're told it was then Woods beat a hasty retreat for his SUV -- but according to our source, Woods says his wife followed behind with a golf club. As Tiger drove away, she struck the vehicle several times with the club.

We're also told Woods had said during the conversation Friday he had been taking prescription pain medication for an injury, which could explain why he seemed somewhat out of it at the scene.

As I recently posted, in Illinois, you can be charged with a DUI if your driving is impaired based on a prescribed drug. If Mr. Woods was traveling on public roads in Illinois with the same prescription pain medication I believe he would be charged with a DUI. Here's the Illinois statute on point:
625ILCS 5/11-501

(b) The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section.

Is that clear? Just because your treating doctor gave you a prescription does not entitle you to drive. Once the police decide you are impaired and you either 1) tell them your doctor gave you a prescription or 2) go to the hospital and get treated (this may well include a blood draw or urine sample that reveals the drug at issue)you could very well be facing a DUI charge even if you don't believe you were impaired.

In Mr. Wood's case his saving grace from being charged with a DUI,even though he was on prescribed pain medication and appeared "somewhat out of it", could very well be that he was not driving on public roads. Perhaps it's time to go through your prescription medications with your treating doctor and make sure they aren't on a list of drugs that could get you charged with a DUI.

Friday, November 27, 2009

Chicago DUI lawyer comments on the passage of Leandra's Law

This Chicago DUI lawyer has posted here about the increase of women being charged with DUI. One of the reasons this increase is significant is because many of these women have their children with them when charged. Now comes the news that New York has passed Leandra's Law, so named after the little girl who died when the driver of the vehicle she was in was arrested for DUI. The driver, Carmen Huertas, picked Leandra up for a sleepover with her daughter.

New York Governor David Paterson on Wednesday signed into law the toughest driving while intoxicated (DWI) legislation in the nation. The Child Passenger Protection Act, also called Leandra's Law, makes it a felony for individuals under the influence of drugs or alcohol to drive with children in the car.

"Too often drivers under the influence of alcohol or drugs chose to compromise not only their own lives, but also the lives of our children. Today we say enough," said Paterson in a press release.

The state Senate passed the bill on a 58-0 vote Wednesday afternoon, and it was passed in the state Assembly on Tuesday.

Under the bill, a drunk driver with a child under 16 years old in the car could face up to four years in prison. If the child is killed while the driver is intoxicated, it will become a B felony and carry a 7- to 25-year prison sentence.

The law is named after Leandra Rosado, an 11-year-old girl who was killed last month when the car she was in crashed on the side of the West Side Highway. The driver, Carmen Huertas was intoxicated at the time and has been indicted on charges of manslaughter and drunk driving.
While we can all agree that drunk driving with a child in the vehicle is heinous you are more apt to be charged with this offense in Illinois during this holiday season. Perhaps just yesterday your whole family, kids included, loaded up and headed to someone else's house for Thanksgiving. Beer, wine and perhaps even a spiked eggnog were served right? You had a few right? Then you loaded the car back up and headed back home. You are perfectly set up to be charged with a DUI, because the kids are with you.

In Illinois, a person who is charged with a first DUI with a child under 16 as a passenger is subject to additional penalties, above and beyond those for a first time offender who is not transporting a child. Those additional penalties include being subject to 6 months jail and an additional mandatory minimum fine of $1,000 and 25 days community sevice in a program benefiting children pursuant to 625 ILCS 5/11-501 (c) (3).

If the child being transported suffers great bodily injury, the offense, even for a first time offender, is a Class 4 felony. That means the person could face 1-3 years in prison. 625 ILCS 5/11-501 (d)(1)(J).

It's a whole lot easier than you imagined to be charged with a DUI for driving with a child in the car. Make sure you have a designated driver during the holiday season. That means one who drinks nothing harder than what the kids are drinking that evening.