Chicago DUI attorney comments on a judge correcting the media

This Chicago DUI attorney has posted here and here about John Ardelean’s fatal DUI.  The uproar has not calmed down and even a judge has decided to co-author a letter to the editor regarding the lack of responsibility displayed by the media.

What seems to be missing today, is the understanding of what sets our justice system apart from so many throughout the world.  As Founding Father Benjamin Franklin said, "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.” 

May 9, Chicago, Il

 Since April 28, the Chicago media has upbraided Judge Thomas Gainer Jr., who correctly ruled that certain prosecution evidence was inadmissible based on the constitutionally infirm arrest of Chicago Police Officer Ardelean.

As is often the case, the media failed to grasp the legal principles undergirding the suppression of some of the prosecution's evidence.

While the pretrial proceedings reveal, with conspicuous clarity, that Ardelean was the subject of an unlawful arrest, nonetheless the media took on the role of prosecution and victim advocates. To briefly explain why Judge Gainer's ruling was correct, a trio of settled constitutional principles are set forth:

First principle: Police officers, like teachers, lawyers and media members, are not second-class citizens.

In 1967, Justice William O. Douglas, writing for the U.S. Supreme Court majority in Garrity vs. New Jersey, explained that: "[W]e conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights. Further, the 14th Amendment prohibits the use in criminal proceedings of certain statements . . . and [that] it extends to all, whether they are policemen or other members of our body politic."

Second principle: The Fourth Amendment to the federal constitution states: "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated."

Our Illinois Constitution similarly states: "The people shall have the right to be secure in their persons ... against unreasonable searches, seizures, invasions of privacy."

Reaching back at least 60 years, the United States and Illinois Supreme Courts have held that the arrest of any person, without probable cause to believe that a crime has been committed, is constitutionally prohibited. Thus, irrespective of the crime at issue, evidence gathered following an unlawful arrest cannot be presented by the prosecution.

Third principle: The role of an Illinois judge. The Illinois Supreme Court has often observed that: "The right of a defendant to an unbiased, open-minded trier of fact (judicial officer) is so fundamental to our system of jurisprudence that it should not require either citation or explanation."

 

A few days ago I commented on Judge Gainer.  I know he isn’t light on DUI and I am confident that he used his considerable legal acumen to draft a lengthy opinion in making his ruling.  It is not often that judge’s draft lengthy opinions in DUI cases, whether there is a fatality or not.

Do you want to know the flipside of what Benjamin Franklin said?  Here it is, Better to arrest ten innocent people by mistake than free a single guilty party. It really shouldn’t be separated from this one, [b]etter to kill an innocent by mistake than spare an enemy by mistake."   Many of you may agree with these statements and even believe, in these difficult times that perhaps we should follow the flipside of Mr. Franklin’s statements.  Before you get comfortable, always know the source.  The notorious leader of the Khmer Rouge, Pol Pot made the two statements above.  Seriously, is this the best America can aspire to today?

Chicago DUI attorney says new legislation that permits winning the DUI war and still losing the battle

This Chicago DUI attorney knows that the State Reps flew out of Springfield yesterday, but knowing that there’s still important unfinished business, like a budget.  It doesn’t mean legislation like this is gone.

SB3732

		Sec. 1-197.6. Statutory summary revocation of driving
		privileges. The revocation by the Secretary of State of a
		person's license or privilege to operate a motor vehicle on the
		public highways for the period provided in Section 6-208.1.
		Reinstatement after the revocation period shall occur after the
		person has been approved for reinstatement through an
		administrative hearing with the Secretary of State, has filed
		proof of financial responsibility, has paid the reinstatement
		fee as provided in Section 6-118, and has successfully
		completed all necessary examinations. The basis for this
		revocation of driving privileges shall be the individual's
		refusal to submit to or failure to complete a chemical test or
		tests following an arrest for the offense of driving under the
		influence of alcohol, other drugs, or intoxicating compounds,
		or any combination thereof involving a motor vehicle accident

		that caused personal injury or death to another, as provided in
		Section 11-501.1 of this Code.

Again, no one wants to have an accident.  But just because there’s an accident and someone is injured, or worse dies, doesn’t mean driving privileges should be revoked.

This seems interesting because even if the person is found not guilty at trial or the charges are dismissed, their driving privileges are still revoked.  Does that really seem just to you?

Chicago DUI attorney comments on the uptick in vehicle seizures

This Chicago DUI attorney has posted here and here about car forfeiture as it relates to being charged with a DUI or driving while your license is suspended or revoked.  Asset forfeiture law has some very specific steps one must take to get your property back, even if you weren’t the one accused of the wrongdoing that triggered the seizure of the property in the first place.

May 6, Aurora, Il

On Jan. 24, 2008, while driving his mom's car, Anthony Rodriguez was stopped by Montgomery police. Court records show at the time of the stop, Anthony's license was suspended, so he was arrested.

It was a fairly routine traffic stop with significant consequences: For Anthony, it inconvenienced his mom. For the rest of the state, it could change the way police do their job.

Because the 2004 Mazda 3 was used in the commission of a crime — driving on a suspended license — police towed it and started the process to seize it.

Anthony's mom, Diana Rodriguez, called police. She needed her car. According to court records, officers informed her they had begun Article 36 proceedings.

Though Article 36 has been on the books for 15 years, police departments have recently begun using it more often. It allows police to take possession of cars used in crimes.

Cops say it's one of the few punishments that really gets through to the bad guys. It's also a source of revenue: Police departments routinely sell the cars or use them in the undercover fleet.

As Rodriguez found out, Article 36 doesn't require a speedy hearing. And the burden of proof is on the owner to prove the car wasn't involved in a crime.

The burden is placed on the owner of the vehicle to know who has your car and what the consequences of them driving your car could be.  The process is indeed slow and may well be unconstitutional, but that will require an awful lot of time to litigate.

Chicago DUI attorney comments on the guilty verdict in the nail painting accident

This Chicago DUI attorney posted here and here just over a year ago about a tragic accident involving the death of a motorcyclist in an accident involving a distracted car driver.  The car driver was painting her nails.  A short time ago a jury returned a verdict in the charge against her for reckless homicide.

From Chicagobreakingnews.com:

After hearing two days of testimony, a Lake County jury has convicted a Morris woman who was painting her nails while driving when she struck and killed a motorcyclist at a red light. 

Lora Hunt was found guilty of reckless homicide in the death of Anita Zaffke in Lake Zurich on May 2, 2009.

During his closing argument, Hunt's lawyer said Hunt has admitted that painting her nails while driving was a "stupid, stupid thing." But Jeff Tomczak argued that it was no different than eating a sandwich, talking on a cell phone or tending to a baby.

"She was negligent, not reckless," Tomczak said. "She can't be found guilty." 

But Assistant State's Atty. Mike Mermel insisted that Hunt had acted recklessly. 

"It is not the same as biting a sandwich. . .it's a voluntary disablement," he said. "She might as well have been in the back seat making a sandwich."  

I disagree with the State’s Attorney.  I believe that the next tragic accident where someone is tending to a baby, eating a sandwich, or responding to the spill of hot coffee while driving could very well be facing a similar charge and a similar outcome.

Chicago DUI attorney hopes your Cinco de Mayo celebration is arrest free

This Chicago DUI attorney sometimes can’t believe the things she misses.  It’s a warm spring evening in Chicago and it just happens to be Cinco de Mayo.

So you already should be aware that the police are going to be out in full force this evening, just like they are on other big holidays.

May 4, Los Angeles, CA

  It's Cinco de Mayo. Although it's cause for celebration here in Southern California and other parts of the U.S. with Mexican-American communities, it's not a holiday in Mexico.

Cinco de Mayo, or Fifth of May, commemorates Mexico's 18-62 defeat of French forces in the town of Puebla.

As with other celebrations like New Years and St. Patrick's Day, police will be looking for intoxicated drivers.

 No it doesn’t matter that today isn’t a weekend, that doesn’t mean that there won’t be additional police patrols.

Chicago DUI attorney is surprised that a DUI changed state Senate rules

This Chicago DUI attorney has posted here and here on government issues and DUI’s.  Who would have thought that a perk for State Representatives would go out of the window because of a DUI arrest?

May 4, Chicago, Il

 Illinois Senate President John Cullerton is no longer using the state-owned SUV his son was driving during a DUI arrest last month.

On Tuesday, Cullerton announced that he has transferred the 2009 Ford Escape Hybrid to the Illinois Department of Central Management Services. The agency will decide where to place the car as other agencies have requested vehicles but have been unable to buy them due to the state's budget crisis.

The incident also prompted Cullerton to change Senate rules regarding the use of the taxpayer-funded cars, which will no longer be allowed to be parked and stored at private residences. Cullerton primarily kept the SUV at his Chicago home, but moved it to the downtown state building following his son's arrest.

Lawmakers and staff members also must now log travel details, including the date, time and mileage of all trips.

 Are you as surprised as I was that government workers didn’t have to provide travel logs for the use of a government vehicle?

Chicago DUI attorney gives free legal advice

This Chicago DUI attorney has seen it time and time again.  She’s amazed that folks are still getting charged for driving with an open container of alcohol.  She does recall that when she was in high school the legal drinking age was eighteen and open container was not against the law.  Then again she grew up in South Carolina where you couldn’t, legally, buy any alcohol on Sunday due to the state’s Blue Laws.

May 3, Bellwood, FL

 An Ocala man who was just minutes away from taking a roadside sobriety test decided he needed another drink before he got started.

Marion sheriff’s deputies say they pulled over Dana Allen Seaman, 61, of 2417 S.E. 17th St., along the 3000 block of County Road 484.

Deputy Eric Larson spotted Seaman swerve his car three times.

After stopping the vehicle, the deputy asked Seaman if he had been drinking. Seaman said yes and agreed to undergo a field sobriety test.

Before the test, the deputy watched Seaman take a drink from a cup and toss it under the passenger seat.

The deputy said he “retrieved the cup and could smell a strong odor of alcohol coming from the cup,” according to the report.

Free Legal Advice:  An Open Container of Alcohol in the car, in most jurisdictions in the country, is against the law.

2^nd Piece of Free Legal Advice:  Driving with an open container of alcohol (even if it belongs to a passenger) is the quickest way to get charged with a DUI.