DUI - don't want one? Top ten things NOT to do!

This holiday weekend, I found a WGN news story simply inspiring:

No Breaking Dawn for this young lady. She's grounded.

Illinois Teenager Blames DUI Crash On Not Seeing 'Twilight' Film: Police Arrest Olivia Ornelas

Thousands of dedicated fans turned out over the weekend to see "The Twilight Saga: Breaking Dawn - Part 1." But for one teenage girl, the tragedy of not making it was a lot worse than choosing between Jacob or Edward.
Police in Illinois arrested an "extremely upset" 18-year-old girl on Saturday after she told authorities that she crashed her car because her boyfriend did not take her to see the new Twilight movie.

Oh yeah. HuffPo does an Illinois DUI story right.

Chicago revenue . . . er . . . camera speeding ticket bill goes to Governor Quinn

If you love your Chicago red light camera tickets, you're gonna love your Chicago speeding tickets via cameras in school zones. As of today, we're just a stroke of Governor Quinn's pen away from a mindless revenue stream of little to no proven value in improving public safety.

Here's the scoop.

DUI statistics used, incorrectly again, for the force of good?

The hand of Prohibition is still being felt across the country, if this article from Pennsylvania is any indication. The author notes that "privatization" actually seems to reduce DUI fatalities. By privatization, he means allowing merchants to decide what type of alcoholic beverage to sell, and when to sell it, to the maximum extent possible.  The article specifically points to DUI in Illinois as an example of lower DUI fatality rates.  The author notes:

"I compared Pennsylvania's alcohol-related traffic fatalities with those of the five largest states that freely allow sales to adults of all three types of alcoholic beverage — beer, wine and spirits (the hard stuff, such as gin and whiskey) — in grocery stores."

Upon comparing those results according to the NHTSA (National Highway Traffic Safety Administration), he see that:

"In 2008, the most recent year for which I found statistics, every one of those five states had fewer fatalities per capita than Pennsylvania, which had one alcohol-related traffic fatality for each 25,604 in population. In California it was one per 36,248; Illinois, Indiana and Michigan were only slightly worse; and in Massachusetts the rate was only one in 52,419."

While I think the author is essentially correct, I'd feel . . . remiss, I suppose . . . if I didn't at least point out that he is using the same failed logical argument that leads those who (whether they consciously recognize it or not) promote prohibition, such as MADD or AAIM advocates. These advocates all miss, intentionally in some cases, a very important distinction.

The statistics and figures given by the NHTSA do not measure drunk driving fatality.

These statistics include any person involved in an accident with any measurable amount of alcohol present in their system. Thus, a rear-seat passenger with a blood-alcohol content of 0.01 (which incidentally may not indicate consumption of alcoholic beverage at all) in a vehicle driven by a completely sober driver determined to be not-at-fault would still be considered in the accident. Doubt me? Check the glossary in NHTSA's own documents here under the term "Alcohol Involvement".

The value of theses statistics is dubious. The value of drawing conclusions related to the efficacy of DUI law in Illinois or any other State of the union is almost . . . silly. Or perhaps more accurately . . . pernicious?

Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com

Mark Ditka, son of ex-Bears Coach Mike Ditka, accused of DUI | abc7chicago.com

Now if Mark Ditka is later acquitted of this Lake County DUI here in Illinois, or his case is dismissed, will abc7chicago deign to write about that? Probably not.

Troy Davis and the integrity of the legal system

Readers familiar with the Troy Davis case out of Georgia might wonder what I'm doing posting about this on a DUI blog.  Good question.  


For one thing, I focus on criminal defense in Illinois as well. For another, one of the great problems presented by DUI investigation and prosecution is a problem of general integrity in the legal system. 


Here we have just such a problem.  Seven of nine key witnesses have recanted their testimony?  When we, as a society, execute people, there must be no room whatsoever for doubt.  Even if Troy Davis is guilty in fact, and not just in law, this is a failure of our system of justice and a blight on it's integrity.


High court refuses to block Troy Davis execution  | ajc.com

Is refusing to submit to DUI breath testing in Illinois good advice?

Probably one of the most common questions we get at Fagan, Fagan & Davis is "if I'm stopped for DUI in Illinois, should I take the breath test?" This is always a tough one. Part of the problem is that people don't know what to expect.

Certainly, drinking and driving is not illegal.

Go ahead, read that again and get it over with . . . you know you want to.
The legal limit is 0.08, true enough, but that's just a number - a bright line drawn almost arbitrarily. Not everyone is necessarily impaired at that level in fact, but in law, all states have passed laws to support the legal fiction that it is. So what is a person to do when confronted with the guessing game of figuring out whether they're anywhere near or over that arbitrary 0.08 number on the street in the middle of the night after being confronted by a rather . . . well, confrontational police officer?
Let's see what a State's Attorney has to say about the effect of refusing to submit to breath testing has on the ability to prosecute DuPage county DUI cases.

In a press release promising the latest "no refusal" weekend the State's Attorney notes that "refusal can make it more difficult to prosecute DUI cases."

He's quite right, of course.

However, when we advise clients not to submit to breath testing (or to submit to any performance tests either for that matter), the purpose isn't to frustrate prosecution. Given the amount of public pressure put on police and prosecutors by organizations such as MADD or AAIM, DUI is prosecuted aggressively. That starts on the street, where officers who observe even a slight odor of alcohol are highly reluctant to let anyone drive away. Motorists need to expect the police are out looking for DUI, but they do not have any obligation to assist in their collection of evidence. Polite and cooperative is quite enough, including a polite refusal to take any tests including a breath or chemical test (unless you've consumed absolutely no alcohol, have not consumed any food or beverage of any kind within about 20 minutes and are the picture of perfect health).

As for "no refusal" weekends, what to do? In our opinion, don't take the field sobriety tests, refuse to answer any questions regarding anything not contained on your driver's license, insurance or registration (which the police are entitled to see), and finally . . . make them get the warrant.

One last thing. Unless you want to risk a charge of obstruction of justice or resisting arrest, when the officer tells you to exit the vehicle, do so.

Minorities more likely to get tickets and get searched AFTER a stop

I'm not typically alarmist when I see stories claiming there's discrimination and racial profiling, but this one is more careful about it than most.

Often, studies talk about who gets stopped. My problem with those studies is that they can't or don't account for neighborhood or regional composition. For instance, why would it be significant that a high percentage of Hispanic people are stopped for traffic tickets in Chicago in an area that is largely comprised of Hispanic residents? None.

Contrast this with a recent study linked below that says something quite a bit more significant about traffic ticket enforcement in Illinois. This study is about what happened after the stop, and that's where the discrimination is suggested. To be fair, the Chicago Police Department comes off fairly well. The story is worth reading, and I welcome hearing your comments.

Study: Minorities more likely to get tickets, have vehicles searched - Chicago Sun-Times

Help! Canada won't let us in!

One of my least favorite calls frequently happens around 2 or 3pm.  Usually it's a young newlywed bride on the verge of tears.

"We're here for our honeymoon and the Canada border people won't let us in because my husband had a supervision for DUI in Chicago four years ago! My hubby didn't even remember this! Can you do something?" [note - expletives deleted to protect my innocent readers].

Sadly, for the most part, the answer is no. You see, in Canada, DUI is a felony offense every time, and is a basis for exclusion from admission.  The most I can suggest in this situation is to ask to speak to a senior agent that has the authority to override the exclusion.  Planning ahead would help, and a call to the Canadian Consulate to determine eligibility for what our northerly neighbors lovingly call "rehabilitation."

According to a recent article in the National Post about DUI exclusion, it would appear that Canada's tourism folks would prefer that exclusion based on DUI cases were perhaps a bit less rigid.  We're thinking somebody told them that occasionally, hunters and fishermen (fisherpeople too) sometimes drink *gasp* alcohol. We'll let you know if we hear about any movement on this.

Meanwhile, let us know what you think about Canada's policy for punishing newlywed brides for DUI arrests their husbands have already forgotten about.

Evidence disallowed by the trial Judge shown in Clemens Criminal. Result? Mistrial.

In any criminal court trial, the Judge decides what evidence is admissible and what is not - they serve as a gatekeeper. Nowhere is this more important that in a criminal Jury trial. The Court in Roger Clemens' criminal perjury trial decided that certain evidence was inadmissible and would unduly prejudice the defendant, in this case, The Rocket himself.

This legal process of having the Judge serve as a gatekeeper of information is fundamental to our system of justice. The Judge is charged with preserving the integrity of the system, and most importantly, with assuring fundamental fairness. Nowhere is this more important than a case where freedom is at stake, like in a criminal trial or, you guessed it, a DUI trial.

Why after a direct order would a prosecutor attempt to introduce the prohibited evidence or exhibit? What do you think?

Traffic court vignette - The God of Large and Small

I haven't posted anything in a while and thought - what a great time for a story! Enjoy!

The God of Large and Small

What does a DUI cost in Illinois anyways?

Fagan, Fagan & Davis attorneys literally speak to hundreds of people charged with DUI in Illinois every year. Without fail, people ask one question: what is this crazy situation going to cost me?!

Great question. While there's no stock answer, let's take a look at what the Illinois Secretary of State has to say on the subject.

Click on the image and you can get a look at the Secretary of State's math. According to the Jessie White's office, the "average" cost of a DUI conviction in Illinois is over $16,100.

We regularly do quite a bit better than this for our clients, especially when our representation results in dismissal of the charges.

This chart anticipates hiring an attorney "uncontested plea" - meaning walk in and give up, we suppose. But whatever we might think of the Secretary's assumptions and calculations, that's one hefty price-tag!

For an independent take on the structure of anticipated attorney fees for DUI, check out this take on DUIAttorney.com.

A change is in the wind . . . er, breath.

Illinois law regarding permits for those suspended based on an accusation of DUI has undergone it's first overhaul since inception in 2009. Illinois Governor Pat Quinn today signed Public Act 96-1526 into law.

Until now, a motorist facing DUI charges in Illinois courts was able to apply to the Court for an MDDP, or Monitoring Device Driving Permit. This MDDP enables motorists suspended for either 6 months (if they submitted to chemical testing such as a breath test) or 12 months (if they refused breath, blood or urine testing) to drive for all but the first month with one significant restriction - that of a BAIID installed in their vehicle. BAIID is alphabet soup for a Breath Alcohol Ignition Interlock Device, and the idea is that the motorist provide a breath sample by blowing into the BAIID, which, assuming no significant amount of alcohol is detected, would allow the vehicle to start.

Illinois law specifies (as it has for over decades in a comparable scheme previously employed called a JDP) that only first offenders as defined by suspension law qualify for the permit. Based on that statute, as well as case law addressing the issue clearly, for purposes of DUI-based suspensions of the sort we're talking about here, a first offender basically means someone who has not had a DUI within the previous 5 years.

The problem was simple - a small group of Judges did not want the responsibility of being the gatekeepers issuing these DUI permits for those motorists who had any kind of DUI history, no matter when, no matter what the law said. If a motorist ever had a DUI, they refused to agree that the application was accepted. Some went further and refused to issue the MDDP for certain types of cases, higher breath tests for example. Never mind that the BAIID would prevent those motorists from driving with any significant amount of alcohol at all, they simply didn't want their names on those MDDP permit applications anywhere.

The solution required by these very few Judges was PA 96-1526. This law eliminates the Judge from the screening process, and requires the motorist to deal with the Secretary of State directly. There is an argument that having one more gatekeeper in the process was a desirable thing, so whether this is a good idea for Illinois DUI law remains to be seen.

It should be noted that these restrictions on a person's freedoms occur without any determination of guilt whatsoever. Before doing anything, anyone merely accused of committing the offense of DUI in Illinois should consult an experienced Illinois DUI lawyer, and that includes consulting an attorney before applying for an MDDP and addressing a summary suspension.