DUI Category Archives — Chicago Criminal Lawyer Blog Published by Chicago, Illinois Criminal Attorney

Do Police Actually Say That You Have The Right To Remain Silent?

December 7, 2021 | by James G. Dimeas, Esq.

Criminal Defense Lawyer It is common for clients to ask me if I can get their case dismissed because the police did not tell them that they have the right to remain silent when they were arrested. The right to remain silent comes from the 5th Amendment to the United States Constitution which protects citizens from incriminating themselves. This means that you cannot be forced to testify against yourself. The 5th Amendment’s right to remain silent is an important right that every citizen has but is not asserted as often as it should be by criminal defendants. In order for a statement made to the police during a custodial interrogation to be used against you in Court, the state has to prove that you made a knowing, intelligent, and voluntary waiver of your 5th Amendment right to remain silent. Let me explain.

It’s important to know when your 5th Amendment right to remain silent kicks in. Many people mistakenly believe that you can assert your 5th Amendment rights as soon as you are arrested. But that may not always be the case. The 5th Amendment’s right against self-incrimination applies to situations in which the defendant is in custody and is being questioned by the police. If you waive your 5th Amendment right to remain silent and voluntarily speak to the police, anything you tell them can be used against you in Court to prosecute you for the crime(s) that you are being charged with.

There are 2 basic elements to the 5th Amendment that must apply to the case in order for the 5th Amendment to kick in. The first element is ‘custody’. In order for the 5th Amendment to apply, you had to have been in custody. Whether you were in custody or not depends on the specific facts of your case. Generally, you will be considered to have been in custody if you were not free to leave. When raising a possible 5th Amendment violation in Court, when the police officer is testifying, the defense attorney will ask the officer if the defendant was free to leave when the questioning began.

What Should I Do If I Am Arrested?

November 26, 2021 | by James G. Dimeas, Esq.

DUI Arrest Today, I met with 2 new clients to talk about representing them for their criminal cases at the Rolling Meadows Courthouse. Both cases have different facts, and both clients responded differently when they were confronted by the police. I want to talk about these 2 cases because they illustrate how what clients do when they interact with the police, can often be the difference between winning and losing a criminal case, going to jail, or walking away from criminal charges without a conviction.

The first client I met today is charged with a DUI. I represented the client’s wife for a DUI in Rolling Meadows about 3 years ago. When I met with the client’s wife, the current client was with her and heard everything I said to her. I told his wife what she should do if she is ever stopped again for a DUI charge. The client was paying attention to what I told his wife because he followed my suggestions almost perfectly. After the client was stopped by the police officer, the officer asked him if he had been drinking. The client refused to answer the question. The officer asked the client where he was coming from and where he was going, and he refused to answer the officer’s question. When the officer asked the client to exit the car, he complied, but when the officer asked him to perform the Standardized Field Sobriety Tests (SFST) on the side of the road, the client refused. When the officer asked the client to blow into a Portable Breath Device (PBD), the client refused. When the client was asked to submit to a Breathalyzer Test at the police station, he refused. The client told me that he knew he was legally intoxicated so he remembered what I told his wife and followed my advice.

The other client I met today is charged with Unlawful Use of a Weapon by a Felon (UUW by a Felon). This client was a front seat passenger in his friends vehicle. The driver was pulled over for a minor traffic violation. The officer claimed that he smelled burnt cannabis and asked the driver and the passenger to exit the vehicle. The officers found a loaded firearm in the backseat area of the vehicle. When the police asked my client and the driver who the gun belonged to, my client admitted that the gun was his. He told me that he admitted to the gun being his to protect his friend. The problem with the admission is that my client is a convicted felon. Because he has a prior felony conviction, he is being charged with UUW by a Felon which carries a mandatory prison sentence. Probation is not an option for a charge of UUW by a Felon.

What’s The Most Important Right I Have With The Police?

July 12, 2021 | by James G. Dimeas, Esq.

DUI Lawyer Last week I was talking to a client about his case and the circumstances surrounding his arrest. He was explaining what the police did and was convinced that his “rights had been violated”. After he told me that “the police did not read him his rights” after he was arrested, I explained to him that a common misperception is that the police must read you your rights once you are arrested. After I explained this to the client, he asked me what rights he had when he was confronted by the police. This got me thinking about what rights citizens have when they are confronted by the police and how a lack of information about the legal rights that citizens have when the are approached by the police has led to so many criminal defendants making mistakes that should not have to be made. Let me discuss.

Let’s start off with this concept: In America, you are innocent until you are found guilty in Court. If you keep this principle in the front of your mind, then everything else I discuss in this article makes sense. I have been practicing criminal law for over 28 years. The biggest mistake that criminal defendants make is that they talk to the police. When you are approached by a police officer an are asked questions, you are presumed to be innocent. The only way to remove that presumption of innocence is if you go to Court and plead guilty, or are found guilty after a trial. Until, and unless that happens, you are innocent. Just because a police officer is asking you questions does not make you guilty of anything. You are under no obligation to prove your innocence. The state has the burden and the responsibility of proving you guilty beyond a reasonable doubt. You also have the absolute right to demand that the state prove you guilty without using any evidence or statements that you made to the police. That is your right as a US citizen. You have the absolute constitutional right to remain silent when the police are questioning you. Yet, most criminal defendants fail to exercise their most important and fundamental constitutional right. It’s the right to remain silent. You have the absolute constitutional right to not cooperate with the police when you are being questioned by them.

Your right to remain silent is found in the Fifth Amendment to the United States Constitution. The famous case that discusses this constitutional right is commonly known as the Miranda case. Your right to remain silent kicks in as soon as you are subject to a custodial interrogation. This means that you have a right to assert your Fifth Amendment right to remain silent and not incriminate yourself if you are considered to be in custody at the time on the questioning. In custody has been determined to mean that a reasonable person looking at the facts and circumstances would determine that you were not free to leave. In the case I discussed at the very top of this post, the client was not read his Miranda rights after he was arrested. The reason that it did not matter in his case was that he did not make any statements to the police that would be considered incriminating. Not only were there no incriminating statements, but there were no statements made that the prosecutor would have any reason to admit in Court.

Can I Be Arrested For Refusing A Breathalyzer Test?

May 4, 2021 | by James G. Dimeas, Esq.

DUI A few weeks ago, I signed up a new DUI case in Rolling Meadows. The client is only 23 years old and this was his first DUI. The client’s car broke down on the way home from a friend’s house and he had to to pull his car over by the side of the road. After a short time, a police officer approached his car and started asking him questions. The officer asked my client to perform the Standard Field Sobriety Tests on the side of the road and the client declined to do so because he is recovering from ankle surgery and was worried that he would fail the tests. The officer asked the client to blow into a Portable Breath Device to determine whether he was good to drive, and the client complied with the request. The Portable Breath Test indicated that he was slightly over the legal limit. The officer informed my client that he would be taking him to the police station to prepare some paperwork. When my client arrived at the police station, he was asked to take a Breathalyzer Test and refused. The officer told my client that he would be taken to the hospital for a blood draw to determine what his Blood Alcohol Level was. The client has a fear of needles so he refused to go to the hospital. The officer told my client that if he did not take a Blood Test that he would be placed under arrest. Fearing that he would be arrested for refusing to take a Blood Test, my client agreed to go to the hospital and agreed to have his blood drawn. Even though the police did not have the blood results, they arrested him and charged him with a DUI anyway.

This fact pattern in this case is somewhat unique. I have not had many cases where the police threatened to arrest a client for refusing to take a Blood Test or take a Breathalyzer Test. What this case does highlight is how not being fully informed about your legal rights as a motorist can come back to bite you when it really matters. You cannot be arrested because you refuse to have your blood drawn or because you refuse to take a Breathalyzer Test. Motorists should know what their rights are before something like this happens. Police officers are counting on you to not understand your rights so they can confuse you and get you to do something that you shouldn’t do and the police want you to do. If you are arrested for a DUI, you should not expect the police officer to give you advice on what you should, or should not do. Ultimately, you are responsible for yourself and you should not count on the legal advice of the police officer to help you make a decision on what is best for you.

You are not required to take a Breathalyzer Test, or a Blood Test, when you are asked to do so. There is no criminal penalty for refusing to take a Breathalyzer or Blood Test. Having said that, you should be aware that while there is no criminal penalty for refusing to take a Breathalyzer or Blood Test, the Illinois Secretary of State will suspend your license for 1 year if you refuse to take a Breathalyzer or Blood Test. This is a civil penalty, and not a criminal penalty. It is known as the Statutory Summary Suspension and the suspension will begin 46-days after the date of your DUI arrest.

The Breathalyzer Test – Just Some Facts

April 6, 2021 | by James G. Dimeas, Esq.

DUI Lawyer The best evidence that the police and the prosecutors have to prove a DUI in Court is a Breathalyzer Test. While it is not necessary for the State to have a breathalyzer test to prove you guilty of a DUI in Court, it is the best evidence that the state can have in a DUI case. I frequently talk to clients who do not understand what a Breathalyzer Test is and how easy it is to get a result that could make it very difficult to fight a DUI case. I want to discuss some facts about the Breathalyzer Test and eliminate some common misunderstandings.

What is a Breathalyzer Test?

The Breathalyzer Test measures the ratio of alcohol to blood or breath. A motorist is asked to blow into a machine, usually at the Police Station, and the machine will record a result which indicates what the alcohol to blood or breath ratio is. In Illinois, a blood alcohol ratio (BAC) of .08 or above is considered to be over the legal limit. If you are under the age of 21, you cannot have any alcohol in your system while operating a motor vehicle. For motorists under 21, if the breathalyzer test detects the presence of any alcohol, that would be enough to charge you with a DUI. If you are a school bus driver, you can be charged with a DUI if a breathalyzer test detects the presence any alcohol in your body. If you are a commercial driver’s license holder, a BAC of .04 or above above is enough to arrest you and charge you with a DUI.

Can I Lose My License For A First DUI?

March 8, 2021 | by James G. Dimeas, Esq.

DUI Lawyer I frequently speak to clients who have been arrested for a DUI. After the initial shock of being arrested wears off, most DUI clients start to think about the future and the possible implications of having a DUI. As with most things, most people do not think about what could happen to them if they picked up a DUI until it actually happens to them. When I receive those calls, most clients are initially worried about whether they will be going to jail. After I explain to them that jail is usually not an option for a first time DUI, the next question is whether they will lose their license as a result of the DUI. I want to take an opportunity to talk about how a DUI can affect your drivers license.

A first time DUI is considered a Class A Misdemeanor in Illinois. A Class A DUI Misdemeanor carries a maximum penalty of up to one-year in County Jail and a maximum fine of $2,500. While it is possible to go to jail for your first DUI, It is highly unlikely that you will be sentenced to jail for your first DUI. It is always possible to receive Court Supervision for your first DUI. Court Supervision is not considered a criminal conviction. A sentence of Court Supervision for your first DUI will allow you to keep your license and maintain your driving privileges in the State of Illinois. Most first time DUI offenders that are found guilty of a DUI, receive Court Supervision for their first DUI. Conditional Discharge is another possible sentence for a first time DUI. Conditional Discharge is considered a conviction that will have serious implications for your drivers license. A sentence of Conditional Discharge for a DUI will result in the revocation of your drivers license and will prohibit you from being able to operate a motor vehicle in the State of Illinois. While it is possible to receive Conditional Discharge for your first DUI, it is rare to see this happen for a first time DUI. However, if you get a second DUI, you cannot receive Court Supervision. The lowest sentence that you can receive for a second DUI is Conditional Discharge. A sentence of conditional discharge for a DUI, whether it’s your first or second DUI, will result in the revocation of your drivers license and will cause you to lose your driving privileges in the State of Illinois.

If you are arrested for a DUI, you will be given some paperwork when you leave the Police Station. It is very important that you read, and understand, the paperwork you are given. One of the documents will be entitled, ‘Notice of Statutory Summary Suspension.’ Depending on whether you took a breathalyzer test or refused to take a breathalyzer test, one of the two boxes on the top left hand part of the document will inform you that your license will be suspended for a period of time. If you took a breathalyzer test and your blood alcohol level was .08 or above, the Notice of Statutory Summary Suspension will notify you that your drivers license, or your Illinois driving privileges, will be suspended for six months. The six-month suspension will begin 46 days after the date of the DUI arrest. If you refused to take a breathalyzer test, the Notice of Statutory Summary Suspension will notify you that your drivers license and your Illinois driving privileges, will be suspended for 12 months. The 12 month suspension will begin 46 days after the date of the DUI arrest. This is known as the Statutory Summary Suspension. The Statutory Summary Suspension will apply to cases involving a blood draw and a refusal to submit to a blood draw. To challenge the Statutory Summary Suspension, your lawyer must file a Petition to Rescind the Statutory Summary Suspension within 90 days of the date of your DUI arrest. When you meet with your lawyer for the DUI, make sure you bring all of the paperwork you received at the police station to the meeting with your DUI lawyer. The papers contain important information that your DUI lawyer will need to prepare and file the Petition to Rescind the Statutory Summary Suspension. We have previously discussed what a Petition to Rescind is, and how to pursue the Petition in court.

What Happens in a Typical DUI Arrest?

January 19, 2021 | by James G. Dimeas, Esq.

DUI After 28 years of practicing criminal law, it is very rare to hear a client tell me something about a criminal case that I never heard before. Throughout the years, I have handled thousands of DUI cases. While every case is unique, there are certain common elements to certain criminal cases. This is especially true with most DUI cases. While it is common for me to speak with clients who were arrested for a DUI, for the clients I am speaking to, this is a unique and scary experience for them. Part of my job as a criminal defense lawyer is to listen to the client and guide them through the process so they understand what is happening and how the criminal justice system works. In this post, I want to explain to my readers what a typical DUI arrest looks like.

Most DUI cases begin with the driver being pulled over for a traffic violation. The most common traffic violation involved in a DUI is Improper Lane Usage. The police officer is following a vehicle as it’s swerving in and out of its lane or entering another lane without signaling the lane change. Other reasons for being pulled over could be for Speeding, Failure to Stop at a Stop Sign, Disregarding a Traffic-Control Device, or any other reason to cause the police officer to make contact with the driver of the vehicle. The other day, I signed up a DUI in which the client was involved in a minor traffic accident. Whatever the reason for the driver being pulled over, something happened to cause the police officer to make face to face contact with the driver of the vehicle.

After the police officer makes contact with the driver, something happens to cause the police officer to suspect that they may be under the influence of alcohol. In a typical DUI, a police officer will note that when they approached the driver of the vehicle, they smelled alcohol, or noticed that the driver was mumbling and had a glassy look in their eyes. Typically the officer will note that the driver appeared confused and disoriented. Sometimes the police will note that the driver admitted to consuming alcohol before driving their vehicle.

Am I Required To Take a Breathylyzer Test?

March 3, 2020 | by James G. Dimeas, Esq.

DUI-1-200x300 As one of the busiest and most experienced DUI attorney in Illinois, this may be one of the most common question I get whenever I speak to a client about their DUI case. The short answer to this question is no. But you should understand the consequences of refusing to submit to a breathalyzer, or chemical test, when you are placed under arrest for a DUI. Illinois is an implied consent state. This means that you give consent to a chemical test to determine the blood alcohol contact in your blood by merely driving a motor vehicle on a public highway or roadway in Illinois. So let’s discuss what happens if you are pulled over by a police officer and the police officer asks you to take a breathalyzer test, or provide a blood sample, to determine what the blood alcohol content (BAC) of your blood is and you refuse the request.

The Breathalyzer Test is the most common test used in Court to prove that your BAC was over the legal limit. In Illinois, if the BAC of your blood, was a .08 or above, you could be found guilty of a DUI. Another way of determining the BAC of your blood is a blood test. In Illinois, if a police officer has reasonable grounds to believe that you were operating a motor vehicle on the roadway while under the influence of alcohol or drugs, that police officer can request that you take a Breathalyzer or Blood test to determine what the BAC of your blood is. If you submit to a Breathalyzer Test, or a Blood Test, and the BAC was a .08 or above, in addition to facing a DUI criminal charge, the Illinois Secretary of State will suspend your license for 6 months because of the BAC reading of .08 or above. This is called the Statutory Summary Suspension. This is an automatic suspension of your license that happens once the arresting police officer notifies the Secretary of State of the Breathalyzer Test results or the Blood Test results. If you refuse to take a Breathalyzer Test or provide a blood sample, the Secretary of State will suspend your license for 1 year. The 6 month and 12 month Statutory Summary Suspensions will kick in 46 days after the date of your DUI arrest.

If your license is suspended due to a Statutory Summary Suspension, you may be allowed to have a Blood Alcohol Interlock Ignition Device (BAIID) installed on your vehicle which will allow you to drive during the 6 or 12 months of your Statutory Summary Suspension. However, in order to be eligible for a BAIID, you must not have had a DUI in the past five (5) years. In addition, a BAIID may be too expensive and too intrusive for some motorists. I recently represented a client who is an executive for a major corporation. He was concerned that if his employer found out about the DUI, he would lose his job. Since he would regularly go to lunch and dinner with his coworkers, he was concerned that they would find out about his DUI if he ever had to drive any of them to lunch or dinner. At the same time, he was required to drive his vehicle almost everyday as part of his job. For this client, the Statutory Summary Suspension was a major source of concern. I was able to solve this problem by getting the state to agree to Rescind the Statutory Summary Suspension as part of the ultimate resolution of his DUI case. However, if your license is suspended due to a Statutory Summary Suspension, the only way to legally operate a motor vehicle in Illinois is to have the BAIID installed in your vehicle. If you are caught driving without a BAIID during a Statutory Summary Suspension, you could be facing serious criminal consequences. Plus, if you are charged with driving you Statutory Summary Suspension without a BAIID, this could make it much more difficult for your lawyer to fight the underlined DUI case in Court.

Kane County to Conduct 25th ‘No Refusal’ DUI Patrol With a “Twist”

February 20, 2020 | by James G. Dimeas, Esq.

DUI Kane County Prosecutors and law enforcement officials have announced that Kane County will be conducting their 25th “No Refusal” DUI patrol over the St. Patrick’s Day Holiday.

The Kane County No Refusal DUI patrols started in 2008. Prosecutors and law enforcement officials will identify specific days of the year to send out patrols of police officers to pull over suspected intoxicated motorists and send a signal that drinking and driving will not be tolerated in Kane County. The specific days selected for the “No Refusal” DUI patrols are days which are associated with a high number of DUI arrests such as New Year’s Eve and the 4th of July. St Patrick’s Day historically results in some of the largest number of DUI arrests every year. Kane County officials will point to statistics which show that there has been a steady decline in the number of DUI arrests in Kane County since the “No Refusal” program started in 2008. What is not known is whether the drop in DUI arrests in Kane County is due to the “No Refusal” DUI patrols, or whether the drop in the number of DUI’s in Kane County has something to do with the increase in the use of ride-share programs like Uber and Lyft. Since the “No Refusal” patrols started in 2008, there have been over 150 arrests resulting from the “No Refusal” DUI patrols.

This year, Kane County Prosecutors and Police, have signaled that they will get tougher on punishing defendants arrested for a DUI during the upcoming “No Refusal” DUI patrols. In Illinois, if you submit to a breathalyzer test, and your blood alcohol level was .08 or above, your driver’s license in Illinois will be suspended for 6 months starting 46 days after your DUI arrest. If you refuse to submit to a breathalyzer test, your driver’s license in Illinois will be suspended for 12 months starting 46 days after your DUI arrest. This is called the Statutory Summary Suspension. The Statutory Summary Suspension kicks in as soon as you are arrested for a DUI and the Illinois Secretary of State is notified by the Police that you refused to take a breathalyzer test or that you took a breathalyzer and your B.A.C. was a .08 or more. If you are pulled over during a “No Refusal” DUI patrol in Kane County and you refuse to take a breathalyzer test, the Police will obtain a warrant allowing the Police to take your blood, without your consent, and use the results of the blood test to prosecute you for a DUI in Kane County. During the “No Refusal” patrols, additional Prosecutors, Police, and Judges, will be on duty and on call to process the warrant requests and to issue the warrants that will allow them to take your blood. A phlebotomist will also be on duty during the “No Refusal” DUI patrols to draw your blood.

What is a Statutory Summary Suspension?

January 18, 2020 | by James G. Dimeas, Esq.

DUI I’ve been handling DUI cases throughout Illinois for over 27 years. I have probably handled thousands of DUIs in my 27 years of being a criminal defense attorney. Looking back at all of the years and all of the cases that I have handled, I can tell you that most people charged with a DUI do not realize that they are probably looking at a mandatory suspension of their license in Illinois. For many people, this mandatory suspension of their license will have the greatest impact on their lives. It will affect their ability to get to and from work, and may even cause them to lose their job. This mandatory suspension, is called the Statutory Summary Suspension. Let’s talk about what the Statutory Summary Suspension is, at what it means for your DUI case.

Illinois has an implied consent law. This means that by virtue of the fact that you are operating a motor vehicle on a public highway in the State of Illinois, you are deemed to have consented to having your breath, blood, or urine, tested whenever a police officer has a reasonable grounds to believe that you may be Under the Influence of Alcohol. Illinois law provides that you are deemed to have consented to such testing by driving on a public roadway in Illinois. If you have an out-of-state license, Illinois cannot suspend your out-of-state license, but they can suspend your driving privileges in Illinois. If a police officer requests that you take a breath, blood, or urine test, and you refuse, your Illinois drivers license will be suspended for 1-year if you are a first offender. If you take a breathalyzer test, and your blood alcohol level was .08 or above, your license will be suspended for 6-months if you are a first offender. This is what is known as the Statutory Summary Suspension. The Statutory Summary Suspension will start 46 days after your DUI arrest. If you are an out of state resident, your right to drive in Illinois will be suspended for 6-months, or 1-year, depending on whether you took a breathalyzer test or whether you refused.

The Statutory Summary Suspension penalty in a DUI case is separate and distinct from the DUI charges. The Statutory Summary Suspension process is a civil case that is between you and the Illinois Secretary of State. The actual DUI charges are criminal in nature and are between you and the People of the State of Illinois. The Statutory Summary Suspension process only involves your drivers license or your driving privileges in the State of Illinois. The DUI charges are criminal in nature and can result in criminal penalties and monetary fines and court costs.