Monday, December 27, 2010

Chicago DUI attorney wishes you a safe and fun 2010

It’s a short work week.  For many of you, you are already on vacation.  You are enjoying the company of family and friends.  There are many, many toasts.  There is lots of laughter.  There is already the promise to treat yourself better in 2011 and quit smoking, eat less meat, and workout more.

There is nothing more that I wish for you than the very best that you wish for yourself and your family during the waning days of 2010.

Still, I want to remind you that I know you don’t think all of those ads apply to you, but they do.  You know the ones.  Get a designated driver.  Friends Don’t Let Friends Drive Drunk.  Don’t Drink and Drive. 

Wait, if you can do just one thing, heed that last one.  Don’t Drink and Drive.  That means the very best way to avoid having to use my legal services is to avoid drinking any alcohol if you are going to drive. It’s not because you are drunk.  It’s not because you are an unsafe driver.  It’s because law enforcement is out in greater than normal numbers doing the holiday season.  If you get stopped for anything, from dodging one of this fair City’s notorious pot holes, to swerving once you hit a patch of ice, if an officer stops you and you have had anything to drink, you will probably be arrested for a DUI.

One more piece of advice, if you think you are too tired to drive, whatever you do, don’t pull over to get some rest.  Get out of the car, or better yet, leave the car and find a way to get some rest before continuing on your journey.

Every year, I represent people accused of DUI who were sleeping.  Every year, I represent people accused of DUI where the officer’s first question is “how much did you drink tonight?”  It doesn’t matter what you say, if that’s the question the officer asks, you need to think about your rights because you are going to be arrested for a DUI.  It won’t matter whether you take those coordination tests, or not.  It won’t matter if you blow into the breath machine, under the legal limit, or not.  You will be charged with a DUI.

Have a Safe and Fun 2010.  

Monday, December 20, 2010

Chicago DUI attorney comments on the roadmap to protect a DUI client

Originally printed in the ISBA Traffic Laws and Courts Section November 2010 Newsletter

People of the State of Illinois v. Marina Kladis, No. 1-09-0686. Discovery sanctions in a misdemeanor DUI case can bar testimony of an arresting officer when a videotape has been discovered

The 1st District ruled that the trial court did not abuse its discretion in partially barring the testimony of the arresting officer in a misdemeanor DUI as a sanction for the destruction of the videotape after the State was served with defendant’s Supreme Court Rule 237 written notice to produce the videotape. This notice was filed by the defendant prior to the first court date (about five days after the defendant’s arrest). People v. Kladis, No. 1-09-0686 (2010) at 3. Unfortunately, and unbeknownst to the State, the videotape had been destroyed in the wee hours of the morning of the first court date, approximately 17 hours before the parties were due to appear in court. Kladis at 2.

Defendant Marina Kladis’ motion was granted for sanctions against the State for destroying the in-car videotape of her arrest for DUI. She was charged with violating section 11-501(a) (2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a) (2).

In this matter, a Statutory Summary Suspension (SSS) was filed and scheduled for the first court date where the parties learned that there was an outstanding videotape that was not available for the defendant prior to the SSS Hearing. The State agreed to mail discovery, including the videotape to the defendant and the SSS Hearing was continued for two weeks by agreement. Discovery was mailed but it did not include a videotape. At the agreed date for the SSS Hearing the State tendered two pages of business records to defendant from the police department indicating the requested videotape of the defendant had been purged. Kladis at 5.

Defendant then filed an oral motion for sanctions and was granted leave to file a written motion. At the hearing on the Motion for Sanctions, solely on the SSS Petition the court stated “the trial assistants have so much work to do and so many cases to handle, that I don’t find any bad faith here.” Still the court ruled that the State received notice to produce based on the Rule 237 request, which the court construed as a motion for discovery. Therefore the destruction of the videotape was a discovery violation. The court recognized it had discretion in determining the appropriate sanction and ruled that no testimony would be allowed that would be on the videotape. The court did specify that the arresting officer could testify about his observations anytime prior to five seconds before the actual stop and any actions by defendant after being formally arrested. Kladis, at 5-6. The petition to Rescind Statutory Summary Suspension was granted. The defendant had a subsequent court date for a hearing on defendant’s motion for sanction on the criminal case, motion to quash the arrest and suppress evidence, and trial.

One of the difficulties facing practitioners stems from the dual nature of a DUI case. A DUI offense has both a criminal component and the quasi-civil matter of driving privileges that is addressed separately through a Statutory Summary Suspension Hearing.

At the Motion for Sanctions in the criminal case the parties stipulated that the officer’s testimony would be the same as it was at the Motion for Sanctions and Petition to Rescind Statutory Summary Suspension”. The court then granted the defendant’s Motion for Sanctions in the criminal case.

So my ruling will be exactly the same. I have no evidence different here, that the Motion for Sanctions pertaining to the case in chief will be granted, the video may not be used, or any testimony regarding what is on the video pertaining to just before the officer stopped the defendant and the time that the defendant was placed in the squad car, which would mean anything that happened on the street prior to her being placed in the squad car. If there was something that she did in the squad car or anything else after that when she got out of the squad car at the police station, or anything that happened in the police station pertaining to this matter which is relevant it will be admitted into evidence.

Kladis at 7.

The State appealed on the basis that the trial court’s sanction was an abuse of discretion. They relied primarily on case law discussing whether the destruction of evidence violated due process. Specifically, Illinois v. Fisher, 540 U.S. 544, 548-659, 157 L. Ed 2d 1060, 1066-1067, 1254 S. Ct. 1201, 1202-1203(2004), where the court ruled that when evidence is potentially useful, but not material exculpatory evidence, then failure to preserve does not violate due process without a showing of bad faith on the part of the State. That argument was weighted by the court against Illinois Supreme Court Rule 415 (g) (1).

In this case the court rejected the State’s reliance on there being a discovery violation based on due process. This was in large part because the trial court did not base its ruling on due process but on The Rule 237 written request to produce the videotape was deemed a motion for discovery.

In Illinois, a discovery violation under Illinois Supreme Court Rule 415(g) (1) only requires a showing that “a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto.” Kladis at 8.

One of the challenges faced by the Court in rendering its decision was how much discovery a defendant is entitled to receive in a misdemeanor case. The majority of cases on point regarding discovery sanctions were felony matters, e.g. People of the State of Illinois v. Koutsakis, 255 Ill. App. 3d 306(1993), People of the State of Illinois v. Kizer, 365 Ill. App. 3d 949, 959-61 (2006). Kladis at 14.

The scope of discovery in a misdemeanor case in Illinois is limited pursuant to People v. Schmidt, 56, Ill. 2d572 (1974). The First District went on to state, “Considering the limited scope of the discovery the Sate is required to furnish under Schmidt in a misdemeanor case, we find no reason to create a ‘material and exculpatory’ prerequisite in order for the defense to obtain the videotape at trial for impeachment of the prosecution witness who prepared it.” Kladis at 19.

Practitioners may wish to heed the suggestions noted by the court in its decision. “We caution, however, that to eliminate any question about whether the State is required to preserve and produce evidence, a signed protective order from the judge could be obtained and then served on the State at the same time the Rule 237 request is served on the State.” Kladis at 19. Additionally, the court also makes clear what types of sanctions a defendant can request. “[T]hat a sanction should be proportionate to the magnitude of the discovery violation.” Kladis at 27.

Defendant did not seek dismissal of the misdemeanor criminal case. The trial court did not completely bar the officer’s testimony and did not dismiss the charges in the criminal case; instead, consistent with the principles articulated in Schambow, Petty, Camp, Koutsakis, and Johns, the court entered a sanction that was limited and proportionate to the magnitude of the discovery violation. The entire testimony of Office Gaske was not barred. The court only barred Officer Gaske from testifying regarding matters on the videotape, while testimony regarding defendant’s driving or other conduct not on the videotape would be admissible.
Kladis at 29.

Kladis provides a roadmap for practitioners to avoid the destruction of discovery as well as how to ask the court for relief, via sanctions, in the event the discovery is inadvertently destroyed.

Monday, December 13, 2010

Chicago DUI attorney comments on mandatory traffic fines

New fines go into effect on January 1, 2011. This Chicago DUI attorney has posted here, here, and here about DUI fees and fines increasing. This time the fee increase will be shared across a much broader base of people.

From 625 ILCS 5/16-104 (e):

Minimum penalty for traffic offenses. Unless otherwise disposed of prior to a court appearance in the same matter under Supreme Court Rule 529, a person who, after a court appearance in the same matter, is found guilty of or pleads guilty to, including any person receiving a disposition of court supervision, a violation of this Code or a similar provision of a local ordinance shall pay a fine that may not be waived. Nothing in this Section shall prevent the court from ordering that the fine be paid within a specified period of time or in installments under Section 5-9-1 of the Unified Code of Corrections.
In a nutshell, the fine can’t be waived by the judge regardless of the individual’s financial circumstances. I’m not convinced that the revenues generated from this particular fine will be adequate to balance the state’s budget.

Sunday, December 5, 2010

Chicago DUI attorney thinks maybe you should hear it straight from the horse's mouth

This Chicago DUI attorney has posted here, here, and here about how to avoid having to call her (or any other attorney that you know) to defend you.  So why not hear it first hand from someone who experienced a DUI arrest?  This didn’t happen in Illinois - the  current court fees, fines, and penalties described in the article are about triple in the Land of Lincoln.

Here’s what can happen: You attend a small dinner party at your brother’s house with your 80-year-old mother, your visiting 74-year-old second cousin from Holland and assorted other family members. As per family custom, you enjoy hors d’oeuvres and several glasses of wine over a lovely meal full of conversation and laughter.
Around 9 o’clock, after a couple of small cups of coffee, and a little more wine, a thimble’s worth of Scotch, you prepare to leave, and do so. Ten minutes later, on a quiet country road near a small town, you notice flashing blue lights behind you; you stop, and you are spoken to by a young officer who asks if you have been drinking.
“Yes,” you say, “I had a couple glasses of wine at a family dinner.”
You are asked to step out of the car for some “field sobriety tests.” You do so, and perform the tests, and feel you have done quite well — except the one where you have to stand on one foot with your arms spread for 30 seconds, and . . . oops . . . you have to touch down a couple of times to keep your balance — no big deal.
You already know what happened don’t you?  He did everything the officer told him to do, and found himself arrested for DUI.

It’s the holiday, I can assure you there are greater numbers of law enforcement out looking for DUI’s (valid or not) during this holiday season.  Please take my advice, don’t drink anything, no eggnog, gloog, irish coffee or even a nibble of rum cake if you are going to be driving.

Tuesday, November 30, 2010

Chicago DUI attorney gets an answer to: "Why Did You Blow?"

This Chicago DUI attorney has posted, here, here, and here about refusing to submit to blood, breath, or urine testing.  She has worked herself into a tizzy trying to figure out how law enforcement officers successfully get so many to submit to these tests. 

She couldn’t believe how simple the answers were:

                        Top 5 Reasons Folks Submit to Testing:

5.                  He said he would let me go.  Yeah, I know I was already handcuffed, but that’s what he said. 
4.                  I told them I wasn’t drunk.  All they were going to find was some weed.
3.                  You mean I didn’t have to take the test?  I thought I did.
2.                  I know I’m not drunk.  I only had a six-pack.

And the number one reason folks submit to testing is:

                        1.         He asked me to.

It is the holiday season and you can be certain that law enforcement will be out looking for people to charge with a DUI.  Here’s my free legal advice:  If you are going to have anything to drink, don’t drive.  If you are stopped by law enforcement for any reason that officer is more than willing to let the courts figure out if you are guilty or not of DUI.

Monday, November 22, 2010

Chicago DUI attorney comments on going to jail for speeding

This Chicago DUI attorney has posted here  about driving too fast, but now they are going to make it a more serious crime to speed.  Not just "pay a fine and keep going" kind of crime that you’ve gotten used to, but the kind of crime that could land you in jail - even if there wasn’t an accident.

Section 5. The Illinois Vehicle Code is amended by changing Section 11-601.5 as follows:

(625 ILCS 5/11-601.5)
 Sec. 11-601.5. Driving 31 30 miles per hour or more in excess of applicable limit.
(a)   A person who drives a vehicle upon any highway of this State at a speed that is 31 30 [sic miles per hour or more but less than 40 miles per hour in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class B misdemeanor.
A Class B misdemeanor is punishable, upon a conviction, with up to 180 days in jail.  I know you are busy this holiday season, but please slow down.

Monday, November 15, 2010

Chicago DUI attorney wonders if you will get an A on the Pop Quiz


True or False:  Court Supervision Does Not Appear On Your Driving Record

I was in court when the judge said:  “Blah, blah, blah, blah, blah (Best Charlie Brown’s School Teacher Voice) and if you have a good driving background I will give you Court Supervision.  Court Supervision WILL NOT appear on your driving record.”

I was shocked.  Over the years I’ve had many, many clients tell me that the judge told them the charges were gone, although they paid a fine.  Whenever this happened, I always tilted my head in disbelief because surely they must have misunderstood what the judge said.  The conversation would then go something like this:

Attorney:         So you were speeding?
Client:             Yes.
Attorney:         You went before the judge?
Client:             Yes.
Attorney:         You told the judge you were speeding?
Client:             Yes.
Attorney:         The judge found you guilty, right?
Client:             No.  He said it wouldn’t be on my record and I could just pay a little
Attorney:         [Brows furrowed while reviewing client’s driving record]You got the
                        speeding ticket on January 6th?
Client:             Yep.  I asked the cop to let me go because it was my birthday.
Attorney:         You went to court for the speeding ticket at the Markham Court
Client:             Yes.  I paid the fine like the judge said.
Attorney:         If it wasn’t on your record, why do I know the date you got the ticket
And what Court house you appeared?
Client:             You mean the judge lied to me!
Attorney:         I’m sure you just misunderstood the judge.

Let’s be clear, court supervision does go on your driving record.  I know it seems like a waste of time to hire an attorney for a minor traffic ticket but you may do well to listen to the first part of the judge’s speech, you know the one where he says he can’t give you any legal advice.

Tuesday, November 9, 2010

Chicago DUI attorney thinks your Halloween costume shouldn't give the police probable cause for a DUI

This Chicago DUI attorney posted here about a BAC DUI costume.  Still, she’s now beginning to wonder if this is more the stuff of an urban legend.

The Halloween crime of the year torch appears to have been passed to Lincoln in 2010.
 Early Monday, a police officer pulled over a pickup being driven erratically by a man dressed as a Breathalyzer.
Matthew Nieveen, 19, was cited for second-offense driving under the influence and being a minor in possession of alcohol.
 "He was dressed as a PBT (preliminary breath testing) alcohol sensor and had been attending a Halloween party prior to the stop," the report says.
Police took Nieveen to Cornhusker Place, where, the report says, his blood alcohol measured more than twice the legal limit of .08 percent. The legal limit for minors is zero.
Nieveen also was cited for an open container violation and negligent driving before being released to detox staff.
 Perhaps young people should harness the power of social media to make sure that no one else gets charged with a DUI for wearing this costume.

Monday, November 1, 2010

Chicago DUI attorney comments on the markers for the New Prohibition

This Chicago DUI attorney suspects MADD will quickly be on this new study.  It could certainly garner legitimacy amongst legislators.


 Alcohol ranks "most harmful" among a list of 20 drugs, beating out crack and heroin when assessed for its potential harm to the individual imbibing and harm to others, according to study results released by a British medical journal.
A panel of experts from the Independent Scientific Committee on Drugs weighed the physical, psychological, and social problems caused by the drugs and determined that alcohol was the most harmful overall, according to an article on the study released by The Lancet on Sunday.
Using a new scale to evaluate harms to individual users and others, alcohol received a score of 72 on a scale of 1 to 100, the study says. It was compared to 19 other drugs using 16 criteria: nine related to the adverse effects the drug has on an individual and seven on its harm against others.
That makes it almost three times as harmful as cocaine or tobacco, according to the article, which is slated to be published on The Lancet's website Monday and in an upcoming print edition of the journal.
Heroin, crack cocaine and methamphetamine were the most harmful drugs to individuals, the study says, while alcohol, heroin and crack cocaine were the most harmful to others.
In the article, the panelists said their findings show that Britain's three-tiered drug classification system, which places drugs into different categories that determine criminal penalties for possession and dealing, has "little relation to the evidence of harm."
Panelists also noted that the rankings confirm other studies that say that "aggressively targeting alcohol harms is a valid and necessary public health strategy."
The Lancet article was co-authored by David Nutt, a professor and Britain's former chief drug adviser, who caused controversy last year after he published an article saying ecstasy was not as dangerous as riding a horse.
 I wonder if one of the authors was looking to curry favor after the debacle of his previous article.

This could very well start the march of the Prohibition Movement.

Tuesday, October 26, 2010

Chicago DUI attorney comments on DUI evaluators setting their own fees

It happened again.  Twice today, once in a face-to-face with another attorney and then again with a group of practitioners the true nature of DUI evaluators was revealed.  There was quite a bit of cursing about DUI evaluators.

In Illinois, anyone who pleads guilty to a DUI, or found guilty of a DUI, must submit to a Drug an alcohol evaluation.  Okay, that sounds straightforward enough, but here’s the catch.

The evaluators make a recommendation of the type and amount of treatment a DUI offender will received.  That recommendation is almost always exclusively used, unchanged, by the State’s Attorney and the courts to determine the sentence.

The sentence then determines how much money the DUI offender must pay, for treatment to, wait for it, the DUI evaluator’s organization.  It is not required that the DUI offender receives treatment at the DUI evaluator’s organization but if not there then it must still be an approved DUI provider.  Care to take a guess as to who generates the approved DUI provider list?

Wednesday, October 20, 2010

Chicago DUI attorney explains why you want a DUI attorney to become a judge

Last week I had dinner with a great group of DUI trial attorneys from across the country. 
One in the group is taking the plunge.  There was spirited discussion about his desire to change his career path.  Take a wild guess what he’s going to do?

Nope, he’s not showing up on Dancing with the Stars, or Iron Chef America, or Top Chef, or America’s Next Top Model.

He wants to be a judge.  The table was so silent you could have heard crickets.  He was peppered with questions from all angles (I did say this was a group of trial attorneys didn’t I).  He just listened and nodded.  Many of the questions took the tone of "why in tarnation would you want to be a judge"?  He may as well have said he wanted to become a prosecutor or law enforcement judging by some of the laughs and grimaces around the table.

I’ve had time to think about it.  Being a judge is way too important a role to have DUI trial attorneys not take this step.  These specific practitioners are willing to piece together those bits of testimony that don’t add up.  They are familiar with forensics and there eyes will never glaze over when hearing science, math, engineering, or medical testimony. 

DUI trial attorneys are that rare group of folks who are frequently viewed with a sneer (or a snarl) more appropriately worn by Billy Idol, not even garbage collectors are asked, “why on earth would you want to do that”?  That question is asked of every DUI trial attorney I know on a regular basis.

Choosing to become a judge represents a huge loss to the DUI trial bar.  And an even bigger loss to loads of accused folks, but if there’s one thing that a DUI trial attorney knows, it’s that she/he is going to get up every day and fight for our Constitution.  The larger community deserves to have judges hearing cases who know what fighting for the Constitution means.

HINT:  In a Criminal Case, the Burden of Proof belongs to the Government.  The Burden of Proof is very, very high.  The Burden of Proof is Beyond a Reasonable Doubt.

Tuesday, October 19, 2010

Chicago DUI attorney comments on reinstated charges for a former DUI Top Cop

Stop the Press!  This Chicago DUI attorney thought, probably a lot like the accused that this case was over, finito, done!  But no, now you can see the awesome power of the government against one of its own previously well-regarded star witnesses, former Chicago DUI Top Cop, John Haleas.

This just in from Chicago Breaking News:

A Chicago police officer once again faces felony criminal charges after an appellate court struck down a Cook County judge's decision to dismiss the indictment against him.
The ruling reinstates charges of official misconduct, perjury and obstruction of justice against John Haleas, the Chicago police officer once lauded for racking up the most arrests for DUI in the state.
The case stems from a 2005 arrest Haleas performed while two prosecutors were riding along with him. He allegedly failed to administer a field sobriety test to the suspect, but the prosecutors later noted that he wrote reports reflecting that he had performed the test. Following an internal investigation, the police department suspended Haleas for one day in July 2007 and in April 2008 he was indicted on the criminal charges.
In August 2009, Circuit Judge James Obbish dismissed the indictment after finding that the state's use of the internal police statement violated Haleas' Fifth Amendment right against self-incrimination and tainted the rest of the case against him.
Prosecutors are generally barred from using an officer's statements in an internal investigation against him in a criminal case, since the officer may be fired for refusing to cooperate with the probe.
On Friday, the Illinois Appellate Court upheld Obbish's decision to toss out the internal affairs statement but found that further hearings should have been held to determine whether the rest of the state's investigation benefitted from that document. The court sent the case back to Obbish for further hearings. 
No.  This isn’t double jeopardy.  Now imagine, if this is how they treat a former police officer, how are they going to get treat you?

Thursday, October 14, 2010

Chicago DUI attorney comments on the need for new laws

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

She’s highlighted what commonsense ought to tell us anyhow, that folks continually being distracted while driving is not limited to the perils of texting while driving.

Heck, several years ago I had a client who was charged with a DUI.  He was acquitted.  Guess what caused the “poor driving” that cause the police officer to stop my client?  No, it wasn’t drinking.  Try again if you think he was texting while driving.  Nope, he wasn’t talking on his cell phone either.  Well, scroll down to the bottom to see what caused his “poor driving, but in the meantime, maybe there’s someone else who can more eloquently explain the perils of creating laws to single out texting over other forms of distracted driving.

When Lora Hunt of Morris smashed into and killed motorcyclist Anita Zaffke in May of 2009 while painting her finergnails [sic], she illustrated a little-known fact: most distracted driving accidents have nothing to do with cell phones.
While more attention has been paid to drivers talking or texting with their cell phones, the National Highway Traffic Safety Administration says just a fraction of the 5,474 people killed and 448,000 injured in crashes involving distracted driving last year were because of cell phone use.
The NHTSA says only 18 percent of the fatalities and 5 percent of the injuries were cell phone related.
People love to eat in their cars. They can't resist fiddling with the CD player or the radio, chatting with passengers, patting their pets or turning around to get after the kids in the back seat while hurtling down the interstate.
"I don't think we've made nearly as much progress in those other areas of distracted driving," says Peter Kissinger, president and CEO of AAA Foundation for Traffic Safety.
He says the nation's vehicles and highway systems are so well-designed; they've helped create complacency among many drivers.
"In some sense we've made things too safe, and people get lulled into this sense of complacency," he says. "The system is fundamentally so safe that most of the time when people do these things, they get away with them."
There you have it.  So what caused my client’s “poor driving”?  He was arguing with his wife.  Today’s free legal advice is never, ever argue while driving.  Yes.  It is another form of distracted driving.  Somehow, I don't believe the legislators are rushing to put a no arguing while driving law on the books. 

Saturday, October 9, 2010

Chicago DUI attorney thinks we already know what will happen to a judge

-This Chicago DUI attorney has posted here about the charge of Reckless Driving for Judge Popejoy.

His troubles have not ended, despite having pled guilty to the charge.

 The Illinois Judicial Inquiry Board filed a complaint against DuPage Circuit Judge Kenneth Popejoy, who admitted last month he fled after crashing into a parked car in Glen Ellyn.
The state board found Popejoy's conduct brought his "judicial office into disrepute" and asked the Illinois Courts Commission to hold a public hearing to determine appropriate discipline. Possible sanctions include censure, unpaid suspension or removal from office.
The four-page JIB complaint, filed Thursday, also revealed a few new details about the June 29 crash. For example, it took Popejoy about 10 minutes to answer his door despite repeated notifications that police were waiting outside, according to the complaint.
The Wheaton man pleaded guilty Aug. 3 to reckless driving, a misdemeanor. He was ordered to pay $500 in fines and serve a six-month period of conditional discharge, which is a nonreporting form of probation.
Popejoy said Friday he anticipated the JIB complaint and has fully cooperated.
"As I stated before, I regret my actions regarding the incident and am working hard to put the matter behind me and restore any trust the public may have lost in me," he said in a written statement.
At 8:15 p.m. June 29, Popejoy dropped off DuPage Chief Judge Stephen Culliton at his Glen Ellyn home after the two socialized at a nearby restaurant with other attorneys. Popejoy drove west down Ridgewood Avenue when he struck a college student's unoccupied 2005 Jeep Grand Cherokee parked on the north side of the street.
Instead of stopping, the judge continued on, drove up on a curb and ran over two plastic garbage cans. His 2003 Jeep Liberty dragged those cans underneath it as he continued west while the front passenger-side tire was nearly off the rim.
This will probably be like other complaints against other judges and end with a reprimand.  As law enforcement has been known to say, “Move along folks, nothing to see here.”

Tuesday, October 5, 2010

Chicago DUI attorney shares what she heard in court

This Chicago DUI attorney has posted here and here about suspended driver’s licenses.

Today the following PSA was made from the bench:

Everyone in this room is charged with driving while their license is suspended or revoked.  Even though I’m the judge, I can’t give you your license back.  The prosecutor standing to my left can’t give you your license back.

Only the Secretary of State can give you your license back.

The response from everyone in the courtroom follows:

  • Blank looks,
  • Quiet enough to hear a pin drop
  • “Huh”?
  • I need a blanket so I can catch up on my zzzzzzzzzzzzzzzzzzzzzzzz

It’s a jailable offense.  You need to have an attorney represent you.  Otherwise today’s small fine as a first time offender has a tendency to become tomorrow’s offer for jail when you are on your fifteenth offense for driving while your license is suspended or revoked.

Monday, October 4, 2010

Chicago DUI attorney comments on a CEO with a DUI keeping a JOB

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

Wouldn’t it be nice to know that even if you faced such a serious criminal charge, your job is safe?

 Horace Mann Educators Corp. president and CEO Louis Lower hit another driver head-on prior to his arrest for driving under the influence during the Memorial Day weekend, Florida police reports confirm.
Lower, 65, has been placed on leave of absence while he serves a 60-day jail sentence in Indian River County, Florida. He is scheduled for release Oct. 26 and is expected to return to his duties at the Springfield company.
No one was hospitalized as a result of the crash, according to police. Lower pleaded guilty last week to a misdemeanor charge of driving under the influence involving personal injury or damage to property.
 Lower said in a statement Monday that he takes responsibility for “a lapse of personal character,” while the board of directors released a statement expressing confidence in Lower. The statement said he is expected to return to his duties by early November.
Lower joined the company in 2000. Horace Mann specializes in insurance, retirement annuities and financial services for educators.
 Still, 60 days in jail for a property damage accident, especially when he can pay for any and all damages, seems a bit excessive.   Are you wondering, whether he gets to keep his company auto insurance after he comes out?

Sunday, October 3, 2010

Chicago DUI attorney thinks you shouldn't wear clothes that give the police probable cause to make you a suspect

This Chicago DUI attorney has posted here about wearing clothing to court that may cause you  a problem.

Even she can’t imagine giving someone legal advice to avoid wearing clothing that could give the police probable cause to charge you with a DUI.

 A three-time convicted drunk driver allegedly drove into the front steps of a house while intoxicated and wearing a T-shirt that says, “I have a drinking problem.” 
James J. Johnson, 50, of 519 Quaddick Town Farm Road in Thompson, was ordered held yesterday on $2,500 bail on charges of drunken driving (fourth offense), negligent driving and malicious destruction of property less than $250. Mr. Johnson was also cited for a marked lanes violation. 
Dudley District Court Judge Neil G. Snider ordered Mr. Johnson to remain alcohol free with random testing, and a pretrial hearing was set for Oct. 28. 
A prosecutor requested $10,000 bail, in part because the state could not impose a condition that Mr. Johnson wear an electronic monitor with a “Sobrietor” device that ensures he doesn't drink alcohol. That's because he resides in Connecticut. 
Mr. Johnson, who was not injured, slurred his words, according to a police report. When asked what happened, he said his dogs were running around inside his truck, causing him to lose control, police said. 

 There’s a lot that could be said here, but where does one start?

Saturday, October 2, 2010

Chicago DUI attorney is anxious, anxious I tell you to get this sweet app

Yes!  A meaningful response for those of us who love loved to text and drive. 

Now, there's a way to text while driving without having to take your hands off the wheel or eyes off the road.
AdelaVoice's free Android app, called StartTalking, is voice-controlled. You don't need to open any app or navigate menus. It can even operate when the phone screen is dark or the keypad is locked.
You just bark out a pre-assigned name to "wake up" the phone, then start StartTalking.
Following audio prompts -- like "Speak to create a text message for Ed or say 'cancel,' " -- you can dictate and route your message. You can play back texts, too.

No I haven’t downloaded the app yet but once I do, you can be sure I will report back.  

Now when can we get an app that read out loud, while we are driving received text messages and email?

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.