Articles Posted in DUI

Marijuana-300x203On January 1, 2014, Medical Marijuana became legal in Illinois. The Illinois Medical Marijuana policy is stricter than most other states that have enacted Medical Marijuana. Illinois does not allow Medical Marijuana to be grown at home. The Marijuana must be cultivated at a state-regulated facility that is under strict rules and regulations. To be allowed to use Medical Marijuana, you must apply for permission from the Illinois Department of Health. The application process is strict and it may take several months for you to be approved. If you are approved to use Medical Marijuana, you will be given an identification card. You will only be allowed to purchase 2.5 ounces of medical marijuana every 14 days. The program is tightly restricted and supervised.

While I was investigating how the Medical Marijuana laws have affected the DUI laws in Illinois, I discovered that if you get a Medical Marijuana card, this will be reported to the Illinois Secretary of State and your status as a Medical Marijuana patient will appear whenever a police officer runs your license. But as I looked into this further, I discovered some troubling news that all Medical Marijuana patients should be aware of. If a police officer is following your vehicle and they run your license plate, it is entirely possible that their computer will show that you are a Medical Marijuana patient. Most Illinois drivers will have their driver’s license number linked with the license plate number of the car that they own and is registered to them. If your driver’s license number is linked to the license plate number of your vehicle and when a police officer runs your license plate number, their computer will show that you are a Medical Marijuana patient. To verify this, I contacted a friend who works at the Illinois Secretary of State and asked him to confirm my findings. Initially, he told me that I was wrong and that this information is not reported to the Secretary of State, so this information would not appear if your license is searched or your plates are checked. I asked him to look into this further to make sure his information was correct because I had received conflicting information. After a short time he contacted me to inform me that my findings were correct and that the Medical Marijuana is reported to the Secretary of State. While not all driver’s licenses are linked to their license plate numbers, most licenses are.

You can imagine how this could be troubling for Medical Marijuana patients. While a valid argument could be made to allow the Secretary of State to place Medical Marijuana patient status on your driving record so that this information would appear if your license was ever run by a police officer, it makes no sense to make it possible for a police officer to discover this information when they are randomly running license plates of vehicles. While most police officers are honorable and honest, allowing this information to be available whenever a license plate number is run through a computer in a squad car opens the door to potential abuse and misuse. One can imagine a situation in which a police officer, who is randomly running license plate numbers of vehicles on the roadway, sees that a particular vehicle is registered to a Medical Marijuana patient and pulls over the driver of the vehicle just because he knows that there’s a pretty good chance that the driver of the vehicle has used marijuana in the recent past. This has the effect of placing a bulls eye on a Medical Marijuana patient who may doing nothing wrong other than being a Medical Marijuana patient.

DUIIt’s been a tough week.  You have been swamped at work and you have been busy at home with activities with the kids.  Finally it’s Friday and you made it. Your co-workers invite you to go out for drinks to relax after the end of a long week and you accept.  After a couple of hours at a local bar of unwinding with your co-workers and after a few drinks, it’s time to go home.  You get in your car and start driving and after a few minutes you realize that you may be in no condition to drive.  You don’t know if it’s the alcohol or if you are just tired from your long week, so you decide to pull over and take a nap because you don’t want to take a chance of nodding off while driving and getting into an accident.  So you pull over on a side street, park your car, shut off the engine and take a nap.  After a few minutes you wake up to the sounds of knocking on your car window.  It’s a police officer who is trying to get your attention.  You explain to the officer that you are tired so you pulled over to take a nap before heading home.  The officer asks you if you have been drinking and you tell him you had a couple of drinks a while ago but had a long week and are just tired.  You pull your car keys out of your pocket and the officer asks you to exit your vehicle.  The officer asks you to perform certain tests and then informs you that your are under arrest for suspicion of driving under the influence of alcohol.  So how can you be charged with a DUI when you were just taking a nap in your car?

This fact pattern is pretty common.  Unless you understand the law in Illinois, it’s hard to comprehend how you can be charged with a DUI when you were doing the responsible thing and getting off the road when you realized you were in no condition to drive.

The key factor in determining whether you could be charged with a DUI is if you had actual physical control of a motor vehicle.  Whether you had actual physical control of your motor vehicle depends on the specific facts of each case.  The Court will look at the totality of the circumstances to determine whether you had actual physical control of your motor vehicle.  The leading case on this issue in Illinois is City of Naperville v. Watson, 677 NE2d 955 (1977).  In this case, the police found Watson sitting in the driver’s seat asleep with his head on the passenger seat.  Watson had the engine running so he could have the heat on.  There was no evidence that he was driving or that he was planning on driving his vehicle.  Yet, in this case the Court found that he was in actual physical control of his vehicle based on the fact that he was sitting in the front seat, the keys were in the ignition and the car was running.  Since he was in actual physical control of his vehicle, he could be charged with a DUI.  What seemed to be important in that case was that Watson had possession of the keys to the vehicle.  The Court specifically found that “sleeping it off” is not a defense to a DUI.  The Court refused to give an intoxicated motorist a “good citizen discount” for realizing they were in no condition to drive.  Rather the court doesn’t want someone who is intoxicated from entering a motor vehicle unless they are a passenger.

Illinois DUI

Most DUI’s in Illinois are a misdemeanor.  If you are operating a motor vehicle on the public roads with a blood alcohol level of .08 or above, you could be charged with a DUI. The maximum criminal punishment for a Class A misdemeanor in Illinois is up to one year in jail and a fine up to $2,500.00.  But there are situations where you could be charged with a felony.  This is known as Aggravated Driving Under the Influence, or Aggravated DUI.  This article discusses how you can be charged with an Aggravated DUI.

Special rules apply to people who have previously been convicted of a DUI.  If you are convicted of a 3rd or subsequent DUI, you could be charged with a Class 2 felony.  Generally, you could be facing a penalty of between 3 to 7 years in prison, probation up to 48 months, along with fines, fees and drug treatment.  If your blood alcohol level was .16 or above, you will be facing a mandatory 90 day jail sentence.   A fourth offense is non-probationable and carries a mandatory 3 to 7 year prison sentence.  A 5th offense is a non-probationable Class 1 felony that carries 4 to 15 years in prison.  A 6th offense is a non-probationable Class X felony which carries a mandatory 6 to 30 year prison sentence.  If the DUI results in the death of another, even if it’s your first DUI, you could be charged with a Class 2 felony.  You are eligible for probation, but in order to be sentenced to probation, the Judge has to find extraordinary circumstances to avoid imposing a prison sentence.  If you are sentenced to a prison sentence, you are facing 3 to 14 years for one death, and 6 to 28 years for 2 or more deaths.

The following instances allow the state to charge you with a Class 4 felony of Aggravated DUI:

DUI

I just received a phone call from a client who was arrested last night for a DUI and was asking me questions about the paperwork that the police gave her when she left the police station. More importantly, she wanted to know what a Statutory Summary Suspension means and how this will affect her ability to drive.  Because I’ve been handling DUI’s throughout Cook County, DuPage County and Kane County for 25 years, it’s easy to forget how confusing the whole DUI process can be for someone who does not handle cases like this every day.  So, I want to take this opportunity to explain the Statutory Summary Suspension process so you can understanding what is happening, and what will happen in the coming months with your driver’s license.

In Illinois, it is against the law to operate a motor vehicle upon the public roads while you are under the influence of alcohol or drugs.  If you are found guilty of Driving Under the Influence (DUI), you could be facing criminal penalties which cannot exceed one year in county jail and a fine of up to $2,500.  Most people know this.  But what many people do not know is that when you have a DUI case, you also have a separate legal matter between you and the Illinois Secretary of State which involves your driver’s license.  If a police officer requests that you submit to a Breathalyzer Test and your blood alcohol level (B.A.C.) is .08 or above, your driver’s license will be suspended for six months starting 46 days after your arrest for a DUI.  If the police officer asks you to take a Breathalyzer Test, and you refuse to take that test, your license will be suspended for 12 months starting 46 days after your arrest for a DUI.

A refusal to take a Breathalyzer Test is defined a little more broadly than simply refusing to submit to the test.  If you agree to take the test and are unsuccessful in submitting an adequate breath sample, then this will be considered a refusal to submit to a Breathalyzer Test. What typically happens is that the police officer will instruct you on what you must do to provide an adequate breath sample so that the machine can register a valid result.  You must pay close attention to what the police officer is saying because if you do not follow the police officer’s instructions and are unable to provide an adequate breath sample, the Secretary of State will try to suspend your license for 12 months because they will consider this to be a refusal.

ArrestThis is a very frequent question that I get from people that call me. They want to know how the police can arrest them without any evidence that they did anything wrong. Just because you were arrested by the police and charged with a crime does not mean that you are guilty. An arrest and a criminal charge is just an allegation. The police officer who arrested you, and the prosecutor that charged you with a crime, believe that you did something wrong. Now they must prove you guilty beyond a reasonable doubt in court. There’s several things that you can do to make it more difficult for the police and the prosecutors to prove you guilty in court. Let’s talk about some of the things that you can do to help your case.

First, let’s talk about something you should not do. You should not resist the police and give them a tough time. There’s no benefit to arguing with the police officer and making their job difficult. All that can do is make the police officer angry and cause them to be a little tougher on you than they might otherwise be. In addition, don’t forget that the police officer is armed with a gun. If the police officer feels threatened, he may use physical force against you which never ends in a good way. If you resist a police officer you could be charged with Resisting a Peace Officer, or if you disobey a police officer’s instructions, you could be charged with Obstructing a Peace Officer.  While both charges are misdemeanors, they are serious misdemeanors because they carry mandatory punishments which could include mandatory community service or even jail time. Simply pulling away from a police officer while they are trying to place handcuffs on you, or trying to run away from a police officer who is trying to place you under arrest, could result in serious criminal charges. Those criminal charges could stick even if you are ultimately found not guilty of the crime that you were originally arrested and charged with. Plus, if you cooperate with the police officer, the officer may go a little easy on you and may even decide not to arrest you, or even charge you with a crime if they are not sure that you did anything wrong.  Even if the police officer arrests you and charges you with a crime, the fact that you cooperated with the police officer and did not give them a hard time could help you when it comes to talking to the prosecutor who is handling your case in court. The prosecutor is much more likely to go easy on you if the police officer tells them that you cooperated with them and did not give them a hard time.

The next piece of advice that I commonly give clients is to exercise their constitutional right to remain silent. I commonly see people who are arrested trying to talk themselves out of it. It almost always ends up being a bad move. If a police officer thinks that you did something wrong, you can talk to them until you are blue in the face and you will not be able to stop them from arresting you. For instance, if a police officer pulls you over and suspects that you have been drinking and the officer believes that you are drunk, the officer will take you down to the police station so that you can take a breathalyzer test. No amount of arguing and pleading with the police officer will change anything. What is more likely is that during the course of trying to convince the police officer that you should not be arrested, you are likely to say something to the police officer that could be used against you later on in court. An example is if you tell the police officer that you only had a couple of drinks and that you are fine to drive. Admitting that you have been drinking can be used against you in court later on to prove that you are guilty of a DUI.

DUI-1Every year the Alliance Against Intoxicated Motorists releases it’s annual DUI arrest survey for Illinois DUI arrests.  This year’s study has some interesting statistics and numbers that I want to share with my readers.  The Alliance Against Intoxicated Motorists sends out surveys to almost 700 police agencies in Illinois.  Roughly 81% of the police agencies responded and they release the findings every year.

For 2016, Rockford reported the most DUI arrests in Illinois, with 459. The top 10 list included the local towns of Elgin, with 365, Naperville, with 312, and Carol Stream with 305.  On the lower part of the top 10 was Cicero, with 305, Aurora, with 234, Lombard, with 233, Oak Lawn, with 233, Joliet, with 212, and Elmhurst, with 201.  The DUI arrest statistics from Chicago are not included in the annual Alliance Against Intoxicated Motorists survey because the numbers from Chicago would dwarf any other town in Illinois, so they place the statistics for Chicago DUI arrests in it’s own, separate category.

The list provided by the Alliance Against Intoxicated Motorists is lengthy since it covers virtually every town and village in Illinois.  I want to include some of the local towns and villages that could be of interest to my readers. The first number is what place the town or village is in with DUI arrests in Illinois, and the second number is the total number of DUI arrests reported:

DUIThe Arlington Heights Police Department has announced that they will have a Traffic Enforcement Campaign in place from June 26 to July 9, 2017. The Traffic Enforcement Campaign coincides with the upcoming Fourth of July weekend. The Traffic Enforcement Campaign will check motorists and vehicles for seatbelt violations, DUI driving, and a roadside safety checkpoint. The first roadside safety checkpoint will take place on June 28th on Arlington Heights Road just south of Algonquin Road. A roadside safety checkpoint is a way that the police can look inside your vehicle and pull you over to the side if they smell something, or see something inside the car, or suspect that the driver is up to no good. What the Arlington Heights Police are planning on doing this weekend is commonly known as a “Police Roadblock.” The Arlington Heights Police will be looking for people that are not wearing their seat belts and are Driving Under the Influence of Alcohol or Drugs. The enforcement campaign is being paid for with Federal Traffic Safety Funds and administered by the Illinois Department of Transportation.

If the Arlington Heights Police pull you over and suspect that you are Driving Under the Influence of Alcohol, you will be asked to pull over and exit your vehicle. The police officer will ask you to perform a series of tests on the side of the road (Field Sobriety Tests) to determine whether you were Driving Under the Influence of Alcohol. If the police officer has reason to believe that you are drunk, the officer will ask you to take a Preliminary Breath Test (PBT). The results of the PBT test cannot be used against you in court to prove that you were Driving Under the Influence of Alcohol. But the results of the PBT can be used to establish probable cause, or a valid reason, for the police officer to place you under arrest for a DUI. If the police officer believes that you failed those tests and the PBT detected alcohol in your breath, the officer may take you down to the Arlington Heights Police Department and ask that you take a breathalyzer test. The Arlington Heights police officer will inform you that if you take the breathalyzer test and the test registers a blood alcohol content of .08 or above, not only will you be arrested and charged with a DUI, but your license will be suspended for 6 months. The Arlington Heights police officer will inform you that if you refuse to take a breathalyzer test, your license will be suspended for 12 months. This license suspension is known as the Statutory Summary.  If you refuse to take a breathalyzer test the officer may still arrest you and charge you with a DUI if the officer believes that he has enough evidence to prove you guilty of a DUI in Court. Proof that could be used against you could be the results of the Field Sobriety Tests, the officer’s observations and opinion, any statements you made to the officer, any witness statements, and any video of you of the Field Sobriety Tests.

If you are charged with a DUI in Arlington Heights, you will be allowed to post a cash bond at the Police Station and go home.  Your car will be impounded and you will need to pay fees to the Village of Arlington Heights to get your car back.  The longer you wait to get your car back the higher the fees will be.  You will be assigned a court date at the Cook County Courthouse in Rolling Meadows. All Arlington Heights DUI cases are held at the Rolling Meadows Courthouse. The Statutory Summary Suspension of your driver’s license will take effect on the 46th day following your arrest for a DUI in Arlington Heights. The only way to stop the Statutory Summary Summary Suspension of your driver’s license, or to reinstate a suspended license following a Statutory Summary Suspension, is to file a Petition to Rescind the Statutory Summary Suspension in Court. The Petition to Rescind the Statutory Summary Suspension can be filed anytime after you are arrested. However, you cannot file a Petition to Rescind the Statutory Summary Suspension more than 90 days after you are arrested for a DUI.

DUIIllinois has some very strict laws, rules, and regulations involving DUI’s. I frequently receive questions from clients asking about whether they should or should not take a breathalyzer when they are requested to by a police officer.  There is no simple yes or no answer to that question. Whether someone who has been stopped for a DUI should submit to a breathalyzer test or not is a very complicated question that depends on each case and the specific facts surrounding each case.  All I can do is explain what the legal consequences of a refusal to submit to a breathalyzer test would be and what could happen if you take a breathalyzer test and you fail that test.

Let’s talk about what a breathalyzer test is.  The only way to test how much alcohol is in somebody’s blood is with a blood test.  A breathalyzer test measures the amount of alcohol in your breath.  That reading gives a very accurate estimate of how much alcohol is in your blood.  A breathalyzer test is performed by blowing into a machine which registers a reading.  The results from that machine have been accepted in court as reliable and admissible evidence in DUI cases throughout Illinois.

Under Illinois Law, driving is a privilege not a right.  Therefore, when you are given a driver’s license in Illinois you give the police the implied consent to ask you to submit to a breathalyzer test when you are requested to do so by a police officer.  You can refuse to submit to a breathalyzer test when requested to take one but the consequences are very severe.  Under Illinois law, if you refuse to submit to a breathalyzer test your license will be suspended for one year.  If you are taken to a hospital the police can force the hospital to draw your blood to measure the amount of alcohol in your blood.  That’s part of the implied consent that the law implies that you gave the police when you were issued a driver’s license in Illinois.

DUI

Being arrested for a DUI can be a very confusing and stressful experience for most people.  Based on my 25 years of experience in handling DUI cases throughout Cook County, DuPage County and Kane County, I can tell you that most of the people that I have represented for a DUI are not criminals, nor are they bad people.  Most of the people that I have represented for a DUI are hard-working citizens who have no criminal record.  Some of them have never even received a traffic ticket.  They simply made a mistake and were at the wrong place at the wrong time when they were caught driving when they had too much to drink.  As a result, most of the people calling me wanting to discuss their DUI have lots of questions and want some guidance on what they need to do and what is about to happen to them.  I want to take this opportunity to explain the process and what to expect.

If a police officer takes you down to the police station and asks you to take a breathalyzer test you have the right to refuse to take a breathalyzer test.  But if you refuse to take a breathalyzer test, you will be facing a mandatory 12-month suspension of your driver’s license.  If you agree to take a breathalyzer test then you must listen very carefully to the instructions given to you by the police officer.  If you fail to properly blow into the machine, that failure will be considered a refusal to take a breathalyzer test which will result in the 12-month suspension.  It’s not enough to argue you tried to follow the police officer’s instructions the best you could but failed to provide an adequate breath sample.  It is your responsibility to listen to the instructions and provide the adequate breath sample.

If you take a breathalyzer test and the test indicates that the blood alcohol level in your system was .08 or above, you will be facing a six-month suspension of your driver’s license.  The suspension of your driver’s license will begin 46 days after the arrest.  Until then you can legally drive your car.