The Illinois Supreme Court issued a ruling in September in the case of Illinois v. McKown that questioned the use of a key field sobriety test known as the horizontal gaze nystagmus (HGN). The court ruled that the results of a horizontal gaze nystagmus test should be subject to challenge at trial. A prior Court of Appeal ruling had determined that the reliability of the test could not be questioned at trial. In overruling the Court of Appeal, the Illinois Supreme Court noted that there is a difference in opinion in courts across the country as to whether the HGN is reliable. The court previously noted that the National Highway Traffic Safety Administration (NHTSA) has determined that the test is incorrect 22 percent of the time.
The HGN is one out of a battery of three tests developed by the NHTSA to assist a police officer in obtaining validated indicators of impairment and establish probable cause for an arrest. These three tests are referred to as the Standardized Field Sobriety Test (SFST), and consist of the HGN, the walk and turn, and the one-leg stand.
The HGN test measures the extent that your eyes flicker back and forth while following a moving object such as a pen, a finger, or a small flashlight. The theory behind this test is that someone under the influence of alcohol will have difficulty following the object and that the eye flicker will occur early, while a person who is not under the influence will be able to track the object further. However, HGN test may indicate other substances besides alcohol such as seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
In the McKown case, Joanne McKown was involved in an accident involving her vehicle and three motorcycles. Ms. McKown admitted to having two beers before leaving her home and a third while driving. Ms. McKown was transported a hospital for treatment for a broken toe. While in a hospital bed, an officer administered the HGN test, which he determined Ms. McKown failed. No other field sobriety test was administered, since Ms. McKown had a broken toe and could not walk properly. The officer admitted that he knew McKown had been administered medication while in the hospital, drugs that could have affected the HGN results.
Ms. McKown was charged with multiple counts of DUI and reckless driving. She refused to submit to chemical testing until a search warrant was issued several hours later. Blood samples taken from McKown did not detect the presence of any alcohol, and the only evidence of her impairment was the failed HGN test.
The Illinois Supreme Court did not find McKown to be innocent of the charges; rather, it determined that an evidentiary hearing must be conducted to establish the reliability of the HGN test. The case was therefore remanded back to the trial court.
If you are arrested for a DUI in Illinois, you must contact an attorney immediately.
A lawyer experienced in defending people accused of DUI can challenge the prosecutor’s evidence and could have the charges reduced or dropped without having to accept a conviction. Thanks for reading my blog. If you have a comment or question, feel free to post it here, but keep in mind your posting will not be confidential. If you have been accused of DUI in Illinois, call or e-mail me for immediate assistance.
Friday, June 27, 2008
Tuesday, June 24, 2008
DUI Courts Offer Alternative to Jail
Drivers accused of driving under the influence (DUI) may soon be appearing in special DUI courts rather than criminal court. These special courts are designed to offer court-supervised substance abuse treatment. The system is based on a model that has proven to be effective in the treatment of drug offenders. While drug courts have been in existence for over two decades, DUI courts are a more recent development, with the first DUI courts being established in 1997-1998.
According to the National Center for DWI Courts, there are currently 110 DUI courts in existence nationwide. In addition, there are 286 drug courts, including 2 in Illinois, which act as hybrid courts, currently serving both drug and DUI offenders. Studies have shown that participants in DUI court have a substantially lower rate of a repeat offense or recidivism; over a two-year period, offenders who went through the regular criminal justice system were 19 times more likely to be arrested for another DUI than those who went through the DUI court system.
The specialized DUI court system also offers economic advantages over the criminal court system. According to the Illinois Attorney General, it costs approximately $23,812 a year to incarcerate someone, as opposed to the $2,000 annual cost per participant in the DUI Court treatment program. The annual savings is thus approximately $21,000 per person.
The DUI court system recognizes that alcohol behavior is influenced by genetic and biological influences. The focus is on treatment and education, not incarceration. Participants undergo long-term treatment (typically 12 months), frequent testing to ensure abstinence from alcohol, counseling, and court appearances involving interaction with a judge. Their progress is carefully monitored and evaluated.
DUI court is an alternative to going to jail and can help some people break the cycle of an addiction to alcohol. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you are facing a DUI/DWI charge, call me to discuss your options and alternatives.
According to the National Center for DWI Courts, there are currently 110 DUI courts in existence nationwide. In addition, there are 286 drug courts, including 2 in Illinois, which act as hybrid courts, currently serving both drug and DUI offenders. Studies have shown that participants in DUI court have a substantially lower rate of a repeat offense or recidivism; over a two-year period, offenders who went through the regular criminal justice system were 19 times more likely to be arrested for another DUI than those who went through the DUI court system.
The specialized DUI court system also offers economic advantages over the criminal court system. According to the Illinois Attorney General, it costs approximately $23,812 a year to incarcerate someone, as opposed to the $2,000 annual cost per participant in the DUI Court treatment program. The annual savings is thus approximately $21,000 per person.
The DUI court system recognizes that alcohol behavior is influenced by genetic and biological influences. The focus is on treatment and education, not incarceration. Participants undergo long-term treatment (typically 12 months), frequent testing to ensure abstinence from alcohol, counseling, and court appearances involving interaction with a judge. Their progress is carefully monitored and evaluated.
DUI court is an alternative to going to jail and can help some people break the cycle of an addiction to alcohol. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you are facing a DUI/DWI charge, call me to discuss your options and alternatives.
Thursday, June 12, 2008
Charges Against Former Lake County Chief Judge May Be Dropped After Death of Arresting Officer
Former Lake County Chief Judge David Hall is facing charges of driving under the influence and resisting arrest following an incident on Illinois Highway 60 on April 26th. Hall was arrested by Vernon Hills officer Jesse Goldsmith, who passed away on June 2nd from a heart attack. According to the Chicago Tribune, prosecutors from the Illinois Attorney General’s Office have indicated that they will speak to the second officer who provided backup to the arresting officer before determining whether or not to continue prosecuting the case. Goldsmith’s death could result in the inadmissibility of the arrest report.
According to Goldsmith’s report, he pulled Hall over after observing Hall weaving over the center line. Hall refused to submit to field sobriety and Breathalyzer tests. Goldsmith’s report states that he detected a strong odor of alcohol from Hall. Hall has entered a plea of not guilty to the charges and has asserted that Goldsmith pepper sprayed him without provocation while Hall was seated in his vehicle. According to Goldsmith’s report, he pepper sprayed Hall after Hall refused to exit his vehicle.
Videotapes of the arrest are not available; one camera had a malfunction, and the hard drive on the other camera was full. Defense attorneys for Hall have filed a motion to quash the arrest report and have filed a motion to toss out his arrest, based on the contention that Goldsmith lacked probable cause to stop Hall’s car.
Goldsmith would likely have testified at Hall’s trial, since arresting officers are routinely called to testify on the events leading to the arrest and on the information contained in their reports. According to various news accounts, the second officer arrived on the scene after Hall had been stopped. The second officer therefore will not be able to testify on Hall’s driving and the events leading to the actual traffic stop.
Will the testimony of the second officer, who did not witness Hall actually driving the vehicle, be sufficient for a conviction for DUI? In Illinois, a police officer does not have to observe you in the act of driving while intoxicated in order for you to be convicted of a DUI. When prosecuting you for drunk driving, the state must prove that you were under the influence of alcohol while you were driving or in actual physical control of the vehicle. However, the elements of the offense must be established by evidence and not by conjecture or speculation. In other words, the State must prove that there is sufficient proof of facts tending to show intoxication and that the defendant was at the same time driving or in actual physical control of a motor vehicle. Circumstantial evidence is sufficient. For example, where a police officer observed a lone occupant of a vehicle slumped over the wheel of a running vehicle at 5:30am, the court ruled that although the officer did not see the person actually driving the vehicle, there was sufficient circumstantial evidence to show the defendant was in actual physical control of the vehicle.
Hall has stepped down as Chief Judge of Lake County, although he remains a judge and has been assigned to administrative duties. To avoid a potential conflict, Hall’s case is being prosecuted by the Illinois Attorney General’s office rather than the Lake County prosecutors. A judge from Kane County has been brought in to hear the case.
It will be interesting to see how the tragic turn of events in this case impacts the case against Hall and any other pending cases in which Officer Goldsmith was the arresting officer. Thanks for reading my blog. If you have a comment, please feel free to post it here, but keep in mind your comments will not be confidential. If you have been accused of a DUI or traffic violation, contact me for a free, confidential consultation.
According to Goldsmith’s report, he pulled Hall over after observing Hall weaving over the center line. Hall refused to submit to field sobriety and Breathalyzer tests. Goldsmith’s report states that he detected a strong odor of alcohol from Hall. Hall has entered a plea of not guilty to the charges and has asserted that Goldsmith pepper sprayed him without provocation while Hall was seated in his vehicle. According to Goldsmith’s report, he pepper sprayed Hall after Hall refused to exit his vehicle.
Videotapes of the arrest are not available; one camera had a malfunction, and the hard drive on the other camera was full. Defense attorneys for Hall have filed a motion to quash the arrest report and have filed a motion to toss out his arrest, based on the contention that Goldsmith lacked probable cause to stop Hall’s car.
Goldsmith would likely have testified at Hall’s trial, since arresting officers are routinely called to testify on the events leading to the arrest and on the information contained in their reports. According to various news accounts, the second officer arrived on the scene after Hall had been stopped. The second officer therefore will not be able to testify on Hall’s driving and the events leading to the actual traffic stop.
Will the testimony of the second officer, who did not witness Hall actually driving the vehicle, be sufficient for a conviction for DUI? In Illinois, a police officer does not have to observe you in the act of driving while intoxicated in order for you to be convicted of a DUI. When prosecuting you for drunk driving, the state must prove that you were under the influence of alcohol while you were driving or in actual physical control of the vehicle. However, the elements of the offense must be established by evidence and not by conjecture or speculation. In other words, the State must prove that there is sufficient proof of facts tending to show intoxication and that the defendant was at the same time driving or in actual physical control of a motor vehicle. Circumstantial evidence is sufficient. For example, where a police officer observed a lone occupant of a vehicle slumped over the wheel of a running vehicle at 5:30am, the court ruled that although the officer did not see the person actually driving the vehicle, there was sufficient circumstantial evidence to show the defendant was in actual physical control of the vehicle.
Hall has stepped down as Chief Judge of Lake County, although he remains a judge and has been assigned to administrative duties. To avoid a potential conflict, Hall’s case is being prosecuted by the Illinois Attorney General’s office rather than the Lake County prosecutors. A judge from Kane County has been brought in to hear the case.
It will be interesting to see how the tragic turn of events in this case impacts the case against Hall and any other pending cases in which Officer Goldsmith was the arresting officer. Thanks for reading my blog. If you have a comment, please feel free to post it here, but keep in mind your comments will not be confidential. If you have been accused of a DUI or traffic violation, contact me for a free, confidential consultation.
Friday, May 30, 2008
Peoria’s “No Refusal” Weekend
The State's Attorney of Peoria County, Kevin W. Lyons, and the Peoria police department implemented what Lyons called a “no-refusal policy” for suspected drunk driving over this past Memorial Day weekend. Lyons sees the new procedures as giving the police the “last word” on Breathalyzer tests. This policy was put into effect for the duration the 2008 Memorial Day Weekend. Because this policy requires greater than usual staffing to implement, it will not be done on a regular basis. Lyons promised that it will likely be used again over the Fourth of July weekend and Labor Day weekend. However, there will be no announcements prior to any new implementations of the policy.
The Procedure
The “no-refusal” procedure does not radically differ from the traditional procedure for a DUI arrest under current Illinois law; however, it does add some additional steps for Peoria police to follow if a person arrested for DUI refuses a Breathalyzer test. Currently, Illinois law does not require a person to submit to chemical testing for Blood Alcohol Content (BAC), which includes a breath test (Breathalyzer) and a blood test. However, if a person under arrest for DUI refuses chemical testing, their driver's license is automatically suspended under an administrative process called Statutory Summary Suspension (see other blog entries on this subject). Some arrestees will refuse chemical testing despite the threat of a suspended license, hoping to thwart the collection of evidence against them.
Under the “no-refusal policy,” a person arrested for DUI will be given the opportunity to take a Breathalyzer test. If he refuses, the Peoria police will seek a search warrant authorizing the seizure of the arrestee's blood. To do so, the officer will have to submit a petition for a search warrant to a duty judge. The petition must detail facts that would support the issuance an order to force blood withdrawal. If the driver who refused testing physically resists a court-ordered blood test, he can be arrested for Resisting a Peace Officer. A person who has refused initial testing and is subsequently convicted after a court ordered blood test will be charged $545 for that blood test.
Breathalyzer v. Field Sobriety Testing
It is important to remember that the Breathalyzer test at issue here is the one taken after a suspected drunk driver has already been arrested on a charge of DUI. This test should not be confused with the Field Sobriety Testing (FST) done prior to an arrest. Field Sobriety Testing is the process by which a police officer assembles facts against a person that will lead to probable cause. For example, if you are unable to stand on one leg or say the alphabet backwards, those facts can be used to make a case for probable cause. Once a police offer has assembled enough facts for probable cause, he will make the arrest. Some police officers will use a portable Breathalyzer device as part of the Field Sobriety Testing. However, you are not required to submit to a Breathalyzer test and are not subject to the “no-refusal policy” until after you are arrested.
What Happened Memorial Day in Peoria?
The 2008 Memorial Day weekend resulted in five DUI arrests in Peoria. Of those five arrests, two people refused the initial Breathalyzer test, but both submitted to a blood test “with no struggles” after a warrant to draw blood was obtained.
Coming to a County Near You
Kane County State's Attorney John Barsanti plans his own “no-refusal policy” weekend sometime in the future. He is hoping to reduce the number of people who refuse the Breathalyzer test. In April, over 40% of the 158 people arrested for DUI in Kane County refused to submit to chemical testing. Similar programs have been popping up in other parts of the country. For example, El Paso, Texas has conducted its own “no-refusal policy” weekends on Christmas 2007, New Years Eve 2007, and Memorial Day 2008. We will have to wait to see if these policies are constitutionally challenged, and, if so, what that result will be.
Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.
The Procedure
The “no-refusal” procedure does not radically differ from the traditional procedure for a DUI arrest under current Illinois law; however, it does add some additional steps for Peoria police to follow if a person arrested for DUI refuses a Breathalyzer test. Currently, Illinois law does not require a person to submit to chemical testing for Blood Alcohol Content (BAC), which includes a breath test (Breathalyzer) and a blood test. However, if a person under arrest for DUI refuses chemical testing, their driver's license is automatically suspended under an administrative process called Statutory Summary Suspension (see other blog entries on this subject). Some arrestees will refuse chemical testing despite the threat of a suspended license, hoping to thwart the collection of evidence against them.
Under the “no-refusal policy,” a person arrested for DUI will be given the opportunity to take a Breathalyzer test. If he refuses, the Peoria police will seek a search warrant authorizing the seizure of the arrestee's blood. To do so, the officer will have to submit a petition for a search warrant to a duty judge. The petition must detail facts that would support the issuance an order to force blood withdrawal. If the driver who refused testing physically resists a court-ordered blood test, he can be arrested for Resisting a Peace Officer. A person who has refused initial testing and is subsequently convicted after a court ordered blood test will be charged $545 for that blood test.
Breathalyzer v. Field Sobriety Testing
It is important to remember that the Breathalyzer test at issue here is the one taken after a suspected drunk driver has already been arrested on a charge of DUI. This test should not be confused with the Field Sobriety Testing (FST) done prior to an arrest. Field Sobriety Testing is the process by which a police officer assembles facts against a person that will lead to probable cause. For example, if you are unable to stand on one leg or say the alphabet backwards, those facts can be used to make a case for probable cause. Once a police offer has assembled enough facts for probable cause, he will make the arrest. Some police officers will use a portable Breathalyzer device as part of the Field Sobriety Testing. However, you are not required to submit to a Breathalyzer test and are not subject to the “no-refusal policy” until after you are arrested.
What Happened Memorial Day in Peoria?
The 2008 Memorial Day weekend resulted in five DUI arrests in Peoria. Of those five arrests, two people refused the initial Breathalyzer test, but both submitted to a blood test “with no struggles” after a warrant to draw blood was obtained.
Coming to a County Near You
Kane County State's Attorney John Barsanti plans his own “no-refusal policy” weekend sometime in the future. He is hoping to reduce the number of people who refuse the Breathalyzer test. In April, over 40% of the 158 people arrested for DUI in Kane County refused to submit to chemical testing. Similar programs have been popping up in other parts of the country. For example, El Paso, Texas has conducted its own “no-refusal policy” weekends on Christmas 2007, New Years Eve 2007, and Memorial Day 2008. We will have to wait to see if these policies are constitutionally challenged, and, if so, what that result will be.
Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.
Wednesday, May 21, 2008
More Serious Charges for Multiple Offenses
It is no surprise that repeat offenders receive stiffer sentences. Recently, a 32-year old Lombard man who was charged with DUI for an incident last summer had his charge amended to a more serious “aggravated driving under the influence.” His charge was upgraded due to his previous record of reckless driving. In 1998, he was convicted for causing a crash that resulted in two deaths.
Aggravated DUI
An aggravated DUI is a serious offense. Under the Illinois Vehicle Code (625 ILCS 5/11-500, subsection (d)), a driver may be charged with aggravated DUI if that driver was driving under the influence in any of the following situations:
Aggravated DUI
An aggravated DUI is a serious offense. Under the Illinois Vehicle Code (625 ILCS 5/11-500, subsection (d)), a driver may be charged with aggravated DUI if that driver was driving under the influence in any of the following situations:
- The driver was involved in crash that caused a death (includes driving a motor vehicle, snowmobile, all-terrain vehicle, or watercraft).
- The driver caused a personal injury.
- The driver has received a third DUI.
- The driver was driving a school bus with children.
- The driver had a previous history of reckless homicide or aggravated DUI involving a death.
Aggravated driving under the influence is a Class 4 felony and carries with it a possible prison sentence of one to three years. This penalty is increased to a Class 2 felony for a third or subsequent conviction and carries a possible three to seven year prison sentence. A fifth conviction is a Class 1 felony carrying four to fifteen years, and a sixth conviction is a Class X felony with a possible six to thirty year prison sentence. These possible sentences can be extended if there is a personal injury or death involved. For example, a Class 4 felony with a personal injury would carry a possible one to twelve year sentence. If a death was involved, the sentence could range from three to fourteen years and six to 28 years for multiple deaths.
Illinois law also provides “add-ons” and modifications if other factors were present during a DUI arrest. These factors include driving under extreme influence (BAC of .16 or higher), driving under the influence while endangering a child, and driving under the influence while under the age of 21. With so many different factors and permutations, it is important to consult an attorney who is experienced with Illinois drunk driving laws to sort through your case.
Other Penalties
Imprisonment is only one deterrent offered by Illinois law. Repeat offenders can expect any of the following to occur:
- court order to install an ignition interlock device in vehicle to permit driving
- fines ranging from $2,500 to $25,000
- suspension or permanent revocation of driving privileges
- mandatory jail time
- community service
- vehicle's registration may be suspended or revoked
- vehicle may be impounded or seized
- be required to complete alcohol education course or substance abuse treatment program
- statutory suspension
Statutory Summary Suspension
A Statutory Summary Suspension is an administrative procedure requiring the automatic driver's license suspension of a driver arrested for DUI who fails or refuses to undergo chemical testing. A test showing a Blood Alcohol Content (BAC) of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound constitutes a “failed” test. This penalty is especially harsh since it does not even require a conviction. Currently, a driver may apply for a Judicial Driving Permit. However, that provision is being phased out and replaced with Monitoring Device Driving Permit (MDDP), which requires the installation of an ignition interlock device. Please see our previous blog posting on this topic.
Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.
Saturday, May 10, 2008
Illinois Ignition Interlock Device Law
Public Act 095-0400, signed into law by Governor Rod Blagojevich on August 24, 2007, requires that all first-time DUI arrestees who receive a statutory summary suspension be issued a “Monitoring Device Driving Permit” (MDDP) and be required to drive only vehicles with an ignition interlock device installed. The device will require the driver to blow into it, like a breathalyzer. The vehicle will not start if alcohol is detected. The law will go into effect beginning January 1, 2009. In effect, the law allows a person whose driver's license has been summarily suspended to drive a vehicle as long as an ignition interlock device is installed.
Statutory Summary Suspension
Statutory Summary Suspension is an administrative procedure by which a driver arrested for DUI, who fails or refuses to take a chemical test has his driver's license automatically suspended. An arrested driver fails chemical testing by having a Blood Alcohol Content (BAC) of .08 percent or more (the existence of any amount of marijuana or other controlled substance is also considered a failure). This suspension is automatic, starting the 46th day following the notice date of suspension. Current law provides for a court to order the issuance of a Judicial Driving Permit (JDP) under certain circumstances, which allows a person with a suspended license to drive for limited purposes.
Changes to the Law
Beginning January 1, 2009, a JDP will no longer be available and will be replaced by the MDDP. This permit will be available to all first time DUI offenders as long as the court finds the following:
Statutory Summary Suspension
Statutory Summary Suspension is an administrative procedure by which a driver arrested for DUI, who fails or refuses to take a chemical test has his driver's license automatically suspended. An arrested driver fails chemical testing by having a Blood Alcohol Content (BAC) of .08 percent or more (the existence of any amount of marijuana or other controlled substance is also considered a failure). This suspension is automatic, starting the 46th day following the notice date of suspension. Current law provides for a court to order the issuance of a Judicial Driving Permit (JDP) under certain circumstances, which allows a person with a suspended license to drive for limited purposes.
Changes to the Law
Beginning January 1, 2009, a JDP will no longer be available and will be replaced by the MDDP. This permit will be available to all first time DUI offenders as long as the court finds the following:
- The offender's driver's license is otherwise valid;
- No death or great bodily harm resulted from the DUI arrest;
- The offender has not been previously convicted of reckless homicide; and
- The offender is not less than 18 years of age.
Currently, Section Sec. 6-206.1 of the Illinois Criminal Code provides that a JDP may only be granted for “the purpose of employment, receiving drug treatment or medical care, and educational pursuits, where no alternative means of transportation is available.” The new act changes the law to remove those limitations for the MDDP. It provides that a driver with an MDDP can drive “for any purpose and at any time” provided that the person complies with the rules adopted by the Secretary of State as to what is a violation of the MDDP. At a minimum, these rules will provide that a person falls out of compliance when the person does any of the following:
- tampers or attempts to tamper with or circumvent the proper operation of the ignition interlock device;
- provides valid breath samples that register blood alcohol levels in excess of the number of times allowed under the rules;
- fails to provide evidence sufficient to satisfy the Secretary that the ignition interlock device has been installed in the designated vehicle or vehicles; or
- fails to follow any other applicable rules adopted by the Secretary.
The new law actually gives people with a DUI-based Statutory Summary Suspension more rights than under the current system. It allows them to use their vehicles as long as the device is installed whereas, under current law, most of these people would not be allowed to drive at all. Even so, if you were arrested for DUI, you should not wait for the first court date to contact an attorney but should do so immediately. Delay in contacting an attorney can result in the loss of certain rights. Several important things can happen on your case before you go to court for the first time.
Thanks for reading my blog. If you have any questions or comments, feel free to leave a response to this posting, but keep in mind that your response will not be kept confidential. If you have been arrested for DUI in the Chicago area, contact an experienced DUI attorney immediately to protect and preserve your rights. If you need assistance with a violation of Illinois’ DUI or traffic laws, contact me to schedule a free, confidential consultation.
Friday, March 21, 2008
New DUI Technology used by Police in Kane County, Illinois
Drivers in Kane County Illinois should be aware of new technology being used by police officers during routine traffic stops. The device is called a PAS IV “Sniffer.” It senses the presence or absence of alcohol without requiring the driver to blow into a mouthpiece. In fact, it senses the presence of alcohol without any participation by the driver at all. Because the PAS IV is incorporated into a standard-looking police flashlight, a driver may not even know the police officer has used the device to “sniff” for the presence of alcohol.
One may think that this device violates the driver’s Fourth Amendment rights against an unreasonable search and seizure, or at least the driver’s privacy rights under the Due Process Clause of the Constitution. However, last week Associate Judge Allen Anderson of Kane County ruled results from the PAS IV may be used as reasonable suspicion to request that a suspected drunken driver undergo field sobriety tests.
It should be remembered, however, that a driver is not required to participate in field sobriety tests (FST) such as the portable field Breathalyzer, the one-legged stand, or the walk and turn test. Police use these tests to determine whether they have probable cause that the driver was under the influence while driving. Once the officer compiles enough observations to form probable cause, he will arrest the driver. However, there is no refusing the PAS IV. It looks like a flashlight and can detect the presence of alcohol up to 10 inches away; thus the test can be completed before the driver has any opportunity to refuse.
There is good news, however. This device only measures the presence of alcohol. A good DUI attorney can make several arguments to lessen the impact of the results. For example, the presence of alcohol can be attributed to a passenger who has been drinking since the device does not determine the origin of the alcohol.
Also, although this judge ruled that it is legal for the police to use the PAS IV, his ruling seems to contradict the 2001 Supreme Court decision in Kyllo v. US. In Kyllo, the Supreme Court held that police could not use thermal imaging (infrared) scanners to look at homes for evidence of crimes without a warrant. Justice Scalia, writing for the majority, explains the Supreme Court’s reasoning:
We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use.
The PAS IV works much the same way as the infrared devices in Kyllo. Except for a few narrowly defined exceptions, the police need a warrant to search one’s automobile. It is one thing if the smell of alcohol leaves the vehicle; it is another thing if the police must enter the vehicle to find it. One is constitutional, the other is not.
Thanks for reading. If you have a comment or question, feel free to post a reply, but keep in mind your response will not be confidential. If you need assistance with a traffic violation or offense in the State of Illinois, call our office or send us an e-mail for a confidential consultation.
One may think that this device violates the driver’s Fourth Amendment rights against an unreasonable search and seizure, or at least the driver’s privacy rights under the Due Process Clause of the Constitution. However, last week Associate Judge Allen Anderson of Kane County ruled results from the PAS IV may be used as reasonable suspicion to request that a suspected drunken driver undergo field sobriety tests.
It should be remembered, however, that a driver is not required to participate in field sobriety tests (FST) such as the portable field Breathalyzer, the one-legged stand, or the walk and turn test. Police use these tests to determine whether they have probable cause that the driver was under the influence while driving. Once the officer compiles enough observations to form probable cause, he will arrest the driver. However, there is no refusing the PAS IV. It looks like a flashlight and can detect the presence of alcohol up to 10 inches away; thus the test can be completed before the driver has any opportunity to refuse.
There is good news, however. This device only measures the presence of alcohol. A good DUI attorney can make several arguments to lessen the impact of the results. For example, the presence of alcohol can be attributed to a passenger who has been drinking since the device does not determine the origin of the alcohol.
Also, although this judge ruled that it is legal for the police to use the PAS IV, his ruling seems to contradict the 2001 Supreme Court decision in Kyllo v. US. In Kyllo, the Supreme Court held that police could not use thermal imaging (infrared) scanners to look at homes for evidence of crimes without a warrant. Justice Scalia, writing for the majority, explains the Supreme Court’s reasoning:
We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use.
The PAS IV works much the same way as the infrared devices in Kyllo. Except for a few narrowly defined exceptions, the police need a warrant to search one’s automobile. It is one thing if the smell of alcohol leaves the vehicle; it is another thing if the police must enter the vehicle to find it. One is constitutional, the other is not.
Thanks for reading. If you have a comment or question, feel free to post a reply, but keep in mind your response will not be confidential. If you need assistance with a traffic violation or offense in the State of Illinois, call our office or send us an e-mail for a confidential consultation.
Subscribe to:
Posts (Atom)
