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.