Category Archives: DUI

Preferential Treatment and the Chicago Police…Reversed?

Last Thanksgiving I saw the broken glass and swept up evidence of a fatal crash only a few blocks from my house. Two young men were killed at a T-intersection on Damen Ave., at Hamlin Park, in front of the softball fields I walk the dog around.

An off-duty police officer, John Ardelean, crashed into two young (Hispanic) men from Cicero around bar close.

In February of 2008, Judge Donald Panarese dropped the charges for lack of probable cause. At that time, he said that “assumptions” were ruling the day, not facts, and the prosecutors hadn’t made their case.

Some of the facts that are known are this. The police officer was given 6-8 hours to sober up before he took a breathalyzer…on which he still blew a .032. There is a video tape showing Ofc. Ardelean drink five shots of booze and three beers in under two hours and only minutes before the crash. Also he appears to leave the bar with bottle of beer in his hand.

Now, witnesses at the bar said two things. Ofc. Ardelean did not appear to be, act or look drunk. Also, some of the shots were water. Really? He was pounding back shots of water with his buddies?

This case is simple. A Chicago Police officer was given the biggest break of his life by his own comrades. He was allowed to sober up for 6 hours prior to taking a Breathalyzer, essentially destroying evidence by letting his body process the alcohol that would have proven he was driving drunk.

Well, the Cook County State’s Attorney’s office got an earful and has decided to reinstate charges against Ofc. Ardelean. They claim that a new video, showing a longer sequence of time where Ofc. Ardelean is drinking means they have a better case. It should be noted that the judge in the preliminary hearing saw no videotape of Ofc. Ardelean drinking at all.

Ofc. Ardelean, from a defense counsel’s perspective, has a good case. Apparently numerous witnesses to back up that he was either pretending to drink, not acting drunk and did not appear intoxicated. He followed the first two rules of a DUI stop, in that he refused a field sobriety test and, technically, a Breathalyzer, although, what he really got was UNBELIEVABLE preferential treatment.

This case may have reasonable doubt written all over it. But there’s also two dead young men, a damning video tape. Ofc. Ardelean should be thinking more along the lines of Anthony Abbate rather than R. Kelly.

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Illinois DUI Laws IV – The Automatic Felony DUI

A wrinkle in the DUI laws in Illinois that everyone should be aware of.

If you are pulled over for DUI and you do not have a valid license (it is is either suspended or revoked at the time) or you do not have insurance (it has to be valid at the time you are stopped), your DUI, even if it is your first, is a felony.

This is a huge deal for most folks. They don’t realize that you have to have BOTH a valid license AND insurance, not to get charged as a felony DUI, even for your first one. Otherwise, you would be able to get a misdemeanor for your first DUI, even your second.

Obviously, if you have a valid license and insurance, you are going to have your license statutorily suspended upon getting your first DUI (without a hearing). So now, you don’t have a valid license. And if you are caught driving for any reason, you’ll pick up a 625 ILCS 5/6-303 or a driving on a suspended license ticket. And those can get serious. They now can add up to felonies and automatic mandatory jail times up to 6 months. Frankly, the State of Illinois sometimes seems more concerned about putting people away for driving without a license than any other crime.

If you’ve had your license revoked because of a prior DUI, or just had it suspended for other traffic reasons, GET IT REINSTATED! Call a lawyer and take them to your hearing at the Secretary of State because driving without a license, or a DUI without a license, has become serious business.

Here is Part III of Illinois DUI Laws – Motions to Suppress

Here is Part II of Illinois DUI Laws – The Consequences.

Here is Part I of Illinois DUI Laws – The Initial Stop.

Interesting Stuff

Here’s what I’ve been reading lately…

A Public Defender describes a terrible Wisconsin Supreme Court ruling regarding sexually assaulting a dead person…and the difficulty that creates. As a native Wisconsinite (not a Wisconsonian, sorry Gideon, Cheesehead is also acceptable) this just makes me uncomfortable.

Mark Bennett at Defending People just finished a white collar criminal trial. As I am about to embark on a large Medicare fraud trial, I appreciate his ability to blog during his breaks!

Steven Gustitis at The Defense Perspective is running an amazing series of posts on the science and technology behind the Intoxilyzer 5000, one of the most widely used machines for testing alcohol for DUI stops. Amazing stuff!

Windy Pundit discusses Scott’s Law and his own unfortunate run-in with the Illinois State Police and the following legal twists regarding suspension of his license.

Sentencing Law and Policy discusses some recent articles on mass incarceration as a criminal justice failure. Hear, hear!

That’s a lot of drunk teens!

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

Illinois DUI Law – II – The Consequences

We are back to the analysis of Illinois DUI law…and now we are on to the Consequences.

This is important to understand, because there are a lot of misconceptions about DUI’s and the penalties that you face with them.

There are two types of penalties that you face from DUI’s, civil and criminal. Criminal penalties range from community service to fines to jail or prison time. Civil penalties are “administrative” penalties..i.e. losing your license.

First, the criminal penalties. As noted before, although DUI is not in the “criminal code” or section 720 of the Illinois for criminal code. It is in section 625 for vehicles, specifically 625 ILCS 5/100 et. al . Here you will find the definitions of, penalties for…and incoherently long and poorly written legislation regarding the application of, the DUI laws in Illinois.

It should be noted that smarter lawyers than myself have done the hard work of appealing DUI penalties based on the fact that there are six (6!) versions of the same law all competing with each other in that section. The updates, penalties, additions and such contradict one another. According to Illinois law, when the legislature makes a mistake like that, the last published Act controls. Therefore, there are judges who think that some penalties exist that are actually harsher than the ones that should. Consult with your lawyer to make sure you understand the issues here.

It should also be noted that the DUI law was cleaned up by the Legislature and as of June, 2008, this year, there are new penalties, and new standards. This is going to confuse judges and lawyers for a while, so kick them in the butt if they don’t know about this change.

From here on in I am discussing the NEW 2008 DUI laws, not the old ones. If you were charged PRIOR to June 1, 2008, THESE DO NOT APPLY TO YOU.

Your first DUI is sort of a gimme. It is a class A misdemeanor, punishable by up to 1 year in jail and up to $2,500 in fines. Usually, a first time DUI offender will NOT receive jail time but they will get the maximum fine. Even with a cheap DUI lawyer, your total bill for a first time DUI will run you, on average, $4000 in total fines, fees, and legal bills. You will also be ordered to take classes to make you address your drinking problem. Generally, you will receive supervision, maybe probation if you have a criminal background. Supervision is the best outcome for you, so try not to blow it by getting in trouble again.

The second DUI now carries a mandatory 5 days in jail, or 240 hours of community service. To be honest, if you thought you could do it, I might recommend the jail time. That amount of community service (30 days of 8 hours a day) is likely to be a onerous burden that you might have a hard time meeting. And if you don’t, you may be ordered to serve jail time anyway for failure to comply. Fines remain the same but they will probably be towards the higher end of the maximum amount allowed.

The third DUI is where the law changes significantly. What used to be a Class 4 felony, punishable by 1-3 years in prison, is now a Class 2 felony, punishable by 3-7 years in prison. Maximum fine up to $25,000. This is serious. And far beyond what your third DUI used to be. Probation is available at this level, and you might get it, especially if your convictions are far apart and it looks like you’re trying to fight your alcoholism. If they’re within 5 years of each other though, I predict you do prison time.

Fourth DUI, non-probational Class 2. This means you HAVE to go prison. For 3 years, with day-for-day good time (plus the 6 months they shave off the top) means you only do 2. Same fines, etc.

Fifth DUI, non-probational Class 2, with the upper limit stretched to 15 years.

Sixth or subsequent DUI, Class X felony, 6-30 years, non-probational. Since I’ve had clients with over five DUI’s, this is a helluva penalty.

ENHANCEMENTS

There are two enhancements to the new law that are also important.

First, if you’re transporting a child under 16, you are subject to 6 months in prison (although if it’s your first or second time, you’re already subject to this penalty), and a minimum $1000 fine (which you were already going anyway).

Second enhancement, and the one most likely to affect you, is the conviction with a BAC over .16. If there was ever a reason NOT to blow, which has already been laid out for you, then this is even more of one. If you blow over a .16 (double the legal limit), you are subject to an additional $500 fine on your first DUI, a $1,250 on your second, $2,500 on your third, $5,000 on your fourth, fifth and sixth DUI. Also, on your second DUI, you get a mandatory 2 days in jail. Basically, they’re punishing you for being more drunk than other offenders. But THEY CANNOT SENTENCE YOU TO THESE ADDITIONAL PUNISHMENTS IF YOU DO NOT BLOW!

There are other wrinkles (for instance, driving a school bus drunk) that are of incredibly limited application to the general public, but keep it safe to say, the punishments have gotten harsher, the fines bigger, and the mandatory minimums worse than ever.

You, the Illinois DUI defendant, have got an uphill battle.

Read Part 1 HERE

Illinois DUI Laws- I – The Initial Stop

Getting a DUI is the most common run in the average citizen is going to have with the criminal justice system. It affects celebrities (Lindsay Lohan), sports stars (Cedric Benson!), local hot shots (hello Walter Jacobson!), everyone. You can’t be too famous to get out of one and it’s such an easy crime for the police to prove they think it is a lockdown conviction. However, don’t think all is lost.

First, what is a DUI?

In Illinois, operating a motor vehicle unsafely while under the influence of either drugs or alcohol, is a DUI. With other drugs, such as marijuana, hallucinogens, or harder stuff, a blood test finding the presence of the drug in you while you were driving, plus evidence that it kept you from driving safely is necessary. Note that if you follow the link, this law is not in the criminal code, it is in the vehicle code. Illinois has a limit to the BAC you can have, which is .08 as it is in most states today.

Now, presumably, if you can operate the vehicle safely and have a BAC under .08 (that’s parts per thousand in your blood, essentially, how much alcohol is in your blood by mass over volume), you’re not violating the law. But if you cannot drive safely with a BAC under .08, you can still be charged with a DUI. It will simply be VERY hard for the State to prove it.

So, how does the State prove you are drunk? Well, there are three steps (and possibly a fourth, depending on how stubborn you are). The first is the preliminary breath test. This is the portable breathalyzer, the lie detector of the DUI stop. This little box is NOT scientifically accurate enough to be admitted into court as evidence, but it will be used by the police officer to establish probable cause. DO NOT BLOW INTO IT! The police officer will tell you that refusal to do so will result in the loss of your license. This is true. BUT SO WILL A DUI! So, you are always best off not hanging yourself at the start and refusing the PBT.

Second, the police officer will do a Field Sobriety Test. These tests, used to establish probable cause that you are indeed intoxicated, are again, not scientifically accurate enough to PROVE that you are drunk, but they are indicators that the police officer gets to use to figure out if you are. This includes the walk and turn (you pace off, heel to toe about ten steps, then turn around), the Horizontal Gaze Nystagmus test (when drunk, your eyes twitch back and forth when looking up and down, left and right, due to your inner ear trying to balance yourself because the alcohol in your blood is making the world “spin”) and the One Legged-Stand test (stand with one leg out in front of you). None of the other tests you see or hear about (alphabet backwards, number sequences, juggling) are of any use or widely used by police officers. Again, you may refuse a Field Sobriety Test as well.

If you fail your Field Sobriety Test you have given the police officer probable cause, not PROOF that you are intoxicated. During this phase and all others, your speech, your eyes (bloodshot? glassy?) your ability to stand unassisted or follow directions, all will be taken into account by the officer and recounted during your trial (and preliminary hearing, and motions to suppress). Upon failure of this test or the preliminary breath test, you’re going to jail.

Third, you will offered the real Breathalyzer. This will happen at the jail as you are being fingerprinted and photographed. DO NOT TAKE THIS TEST! Without getting too technical, the real Breathalyzer (in general use in the State of Illinois is the Intoxilyzer) uses fuel cells to determine the presence of ethyl alcohol in the water vapor you expel from your body. In Illinois the results of this test are rebuttable, that is, you the Defendant, can introduce evidence that the Intoxilyzer is a) not calibrated correctly, b) broken, c) not used properly, d) whatever else you can think of. In other words, if you take it, it’s not the end of the world. But, here’s the repeated advice…DO NOT TAKE IT! To bring in an expert and rebut all that scientific evidence is EXPENSIVE and time consuming.

Yes, the cops will tell you that not doing taking the Breathalyzer (or Intoxilyzer, whatever it is they have) is going to screw you. Yes, there will be a lot of pressure to do it. But, if you breathe in that thing, say goodnight, because now you’re going to be spending THOUSANDS OF DOLLARS on an expert to rebut the evidence you just created against yourself.

The last, possibly fourth way to prove that you are intoxicated is the blood sample. You CAN be forced to give blood, for a DUI, however, few officers will go that far if you simply refuse. However, if you are in a car accident during your DUI, you will most likely have blood taken anyway, if you’re lucky enough to survive it, and that will be preserved for evidence. Clearly, the best evidence of intoxication is blood (and in fact, states like South Dakota ONLY allow blood evidence at trial).

The thing is, a cop is not going to drive you to a hospital to do this, nor do many police stations have blood draw kits at the precinct. You’re going to just have no evidence if you refuse everything. Which YOU SHOULD DO!

Next week: The Consequences.