Illinois DUI Law – III – Motions to Suppress or the Pre-Emptive Strike

Many of my clients approach me no matter what the charge and ask the same question “Can you get it dismissed?”

What they really mean, is the Motion to Suppress, the Holy Grail of most criminal cases. This is the opportunity to cut the knees out from under the prosecution and bring the state’s case to a crashing halt. It also USUALLY but NOT always means the dismissal of the case against you.

So what is a motion to suppress evidence and quash arrest? Essentially, you, the accused drunk driver, are saying that there was no reason for the police officer, state trooper or sheriff to pull you over. If they had no reason to pull you over, then the arrest is invalid. If the arrest is invalid or the detention is illegal, then evidence gathered from that arrest is not allowed into court. In a DUI case, that means, if they had no reason to stop you, then the case will be effectively won.

See, most motions to suppress evidence (the breathalyzer, the results of your field sobriety test, the observations of the officer, that is the evidence you want knocked out) are lost. They are lost because the bar is set quite low on whether there was probable cause to arrest. This is where technology comes in.

Since a motion to suppress usually involves the word of you, the accused drunk driver, against the word of the (presumably) sober police officer…you usually lose. So hopefully there is a videotape of your arrest.

In many places, police cruisers have video cameras that automatically turn on when the wig wags (the lights on top) go on. But, and this is important for the Chicago DUI defendant, Chicago police cruisers do NOT have video cameras. Too expensive to install the damn things…or something. So, unless you’re pulled over by the State Police, or a smaller police force (Oak Park, Blue Island, etc.) you are out of luck.

The reason the videotape helps is that the police officer should be pulling you over for one reason…a traffic violation. That traffic violation is, in the case of a drunk driver, usually failure to stay in your lane, observe a traffic signal, failure to signal a turn, or something else petty. It can also be even more petty, like having out of date registration, or a bum brake light. These are all citable offenses, therefore the police has probable cause to stop you. The question then becomes, does that stop proceed to probable cause to investigate you for drunk driving.

Assume that you the accused drunk driver have not a) hit another parked car, b) been waiving a fifth of Jack out the window or c) been observed by the officer stumbling out of the Cabo Wabo Free Tequila and Rum Shooters Cubs Party Deck on Clark Street. Let’s say, you’re just driving down the road, minding your own business when all of a sudden the lights are in the rear view.

If that police officer has no reason to believe you have been drinking, then s/he should not start into a DUI type stop. So what leads them to believe you have been drinking? We’ve already gone over that in part I with the bloodshot eyes, the slurred speech, the difficulty finding your wallet or proof of insurance.

However, it’s the initial traffic stop that brings you to their attention and that’s what you hope the police officer may or may not have recorded. Of course, think about it, if the police officer turns on the lights, it’s because they NOW have reason to pull you over. And since the cameras don’t roll all the time, it’s most likely that the police officer doesn’t turn them on until after the traffic violation is observed. However, things like “failure to stay in your lane” particularly, should conceivably be able to be observed as you are being pulled over. It helps if the video shows you signaling properly, staying in your lane, etc.

It will still be the word of the officer that will be key. That officer will have to describe, with particularity, what it is that you did to violate the Vehicle Code, the City Code, or the Statutes of the State of Illinois, and therefore allowed them to stop you. If that officer can’t, then you will be found to have been illegally detained, and therefore not been legally arrested, and the evidence, all of it, will be thrown out. That is as big a victory as the DUI defendant usually gets.

p.s. It should be noted that things like audio recordings of the police officer’s radio dispatches, the video recording from the cruiser…these things are all destroyed after roughly 28 – 30 days in almost all jurisdictions. That means, CALL YOUR LAWYER RIGHT AWAY. I can’t tell you how many people call me after their first or second court date, which is weeks too late to get a hold of any evidence. Time is NOT on your side. Act fast, or lose it.

Read Part II of Illinois DUI Laws here

And Part I here

Indiana v. Edwards – Competency and the Right to Self-Representation

Competency in criminal law is a tricky concept.  Competency to stand trial is not the same as “insanity” when the crime occurred. Competency is whether or not you should be put to trial. Dusky v. United States established the standard by which you, the criminal defendant, are competent. You must be able to consult with your lawyer, in other words, be able to communicate with him and help yourself, and you must understand the nature of the proceedings against you. This means, you know that you are on trial, you understand that a court of law convened by citizens are going to put you in prison (or worse) if they convict you.

In reality, very, very few clients are incompetent.  There are two reasons.  First, standards are really pretty high that you are so incompetent that you can’t assist in your own defense. You must be quite mentally ill to not understand the proceedings against you or be able to assist in your own defense. It should be understood that the ability to “understand” the nature of the proceedings against you is not the same as being able to successfully or easily navigate the legal system.

The second is that in reality, the justice system doesn’t want people to not be held responsible for their actions. Local Chicago readers of this blog might remember the Jeanette Sliwinski case. Ms. Sliwinski decided to commit suicide by driving her car full speed through numerous intersections until she caused a triple fatality at a busy Northside intersection. She killed three young men on their lunch break (they worked for Shure Inc., an audio equipment company one of my good friends works for, he knew all three of the victims). It was decided that she was competent to stand to trial, even though at the time, it seemed that she really wasn’t. This sort of thing happens all the time. A person would appear, to the lay person, or the newspaper reader, to be absolutely nuts…but they aren’t in the eyes of the psychological professional, or by the standards of the law.

Which brings us to your 6th Amendment right to counsel. Everyone has the right to a lawyer in a criminal proceeding. Faretta v. California established the Constitutional right to be your own lawyer. As you have probably heard, the person who represents themselves has a fool for a lawyer. And let me just say, that in my own experience, 90% of people who want to represent themselves are generally mentally ill. Ask any public defender, prosecutor or judge who has spent any time in the system. The pro se lawyers are of one of two general types. One, is very, very nuts. The other, is pretty smart, but not smart enough to prevent lasting damage.

This finally gets us around to Indiana v. Edwards. This recent case by the Supreme Court at the end of their recent term decided that you can be competent to stand trial…but not competent enough to represent yourself as a lawyer.

In practical terms, this is probably a godsend to prosecutors and judges who have to deal with pro se defendants clogging up the system with frivolous motions and ridiculous defenses. On the other hand, public defenders are blanching at the prospect of a host of new clients. Generally the mentally ill are marginally employed and will only have the resources to hire a lawyer if their family does. They are distrustful, difficult and leery clients. It is going to strain public defender systems already at the breaking point.

It also calls into question the current competency standards. It seems to admit that the competency standard is both high and low at the same time. i.e. it’s hard to be crazy enough to not know what is going on around you, but it’s easy to be crazy enough not to be able to navigate the legal system. I understand that the legal system is complicated…it takes years of school and then years of experience to even start to master it. But when the Supreme Court admits that you might not be “crazy” in the eyes of the law for your actions but “too crazy” to flex your Constitutional rights to represent yourself…then something seems to be amiss.