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 It can also be even more petty, like having out of date registration, or a bum brake light.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.
And Part I here