Archive for January, 2009

DUI Legal Guide

Shh, don’t tell Greenfield that I published a legal guide on Avvo about DUI in Illinois.

Jeremy Richey

The Purpose of Suspension Warnings

In Illinois, if you are arrested for DUI and you are a first offender, your driver’s license will be suspended for six months if you fail chemical testing and for 12 months if you refuse chemical testing.* Before an officer asks you to submit to chemical testing, he will warn you of the consequences of refusing the testing and of failing the testing.  What is the purpose of the warnings? Is it to help you make an informed decision? Nope, the purpose is to coerce you into providing evidence for the government.  This is what People v. Ehley (.pdf) (internal citations omitted) has to say:

A person asked to submit to law-enforcement-directed testing [. . .] must be warned by the officer that (1) refusing to submit to a test will result in a statutory summary suspension and (2) submitting to a test that shows an alcohol concentration of 0.08 or greater will result in statutory summary suspension.  The Illinois Supreme Court has repeatedly stated that the warnings are not meant to enable an “informed choice” but are an evidence-gathering tool for the State.   That is, the suspension provisions are meant to motivate drivers to submit to testing.

Jeremy Richey

*If you thought that the suspension periods were 3 months for failure and 6 months for refusal, you’re wrong.  Those were the suspension periods in 2008.   Things have changed for 2009 and beyond.

Obama the Lawyer — ARDC Fun

Is your lawyer really licensed to practice law in the State of Illinois? To find out, you only need to visit the ARDC website.

Do you want Abraham Lincoln to handle your divorce? Well, he can’t represent you because he is deceased. Also deceased is the man he debated in Illinois — Stephen Douglas.

What about William Jennings Bryan? He won the Scopes Trial, right? Everyone wants a winner to be their lawyer, right? Sorry, he is deceased too.

Well, how about Clarence Darrow then? He’s a decent trial lawyer, right? Deceased.

What about living lawyers?

There’s author Scott Turow — and he’s authorized to practice law in Illinois. He’s a real lawyer in a real law firm.

There’s also the infamous Rod Blagojevich. He’s not authorized to practice law, but I hear that he is willing to do things in exchange for money.

Finally, there’s a man you may have heard of — Barack Hussein Obama. He is not currently authorized to practice law. I have been told that he will not be accepting new clients for at least four years.

Jeremy Richey

UPDATE: The above links don’t work. See the comments to this post. To see the records, you will need to go to the ARDC website and search for each name individually.

Pleading Felonies to Misdemeanors

A person found this blog by asking a search engine if a felony could be pled down to a misdemeanor. This is possible, but, in order for this to happen, the prosecutor must agree to a misdemeanor plea and a judge must accept the plea. Typically, the biggest hurdle to jump is getting the prosecutor to agree to a misdemeanor disposition instead of a felony one. The following (non-exhaustive) list contains some of the reasons why a prosecutor might agree to plead a felony down to a misdemeanor.

  • The State has a weak case.
  • The felony charge is stupid.*
  • The prosecutor feels compassion towards the defendant.
  • The State purposefully overcharged the defendant in order to induce the defendant to plead to a misdemeanor

Jeremy Richey

*What did I mean by this statement? For example, suppose a cop sees an 18-year-old kid drinking alcohol. When the cop approaches the kid and asks him how old he is, the kid lies and tells the cop that he is 22. As soon as the kid lied, he committed the felony offense of Obstructing Justice. Charging this offense under these circumstances is stupid.

Can My DUI Be Expunged?

Answer: No. A DUI case cannot be expunged in Illinois.

A person asked this question to a search engine and the search engine guided the person to this weblog. I don’t believe I have answered this question on this weblog before, so I will now.

Generally, when a person receives a sentence of judicial supervision, the person’s case may be eligible for expungement down the road. But, if the person pleads guilty to DUI and is placed on judicial supervision, then the person will never* be able to expunge his case. This is the law in Illinois.

Jeremy Richey

*OK, you could get a pardon that authorizes expungement, but good luck with that.  Your chances of getting such a pardon are slim to none.

Related Post:

More About DUI Expungement

Pleading Not Guilty Revisited

My post on the guilty pleading not guilty has generated some attention.  In this post, I will add a few more words to the discussion.

First of all, I want respond to Scott Greenfield’s concern about my use of the word “ethical.”  I chose this word because it is often communicated to me by people I talk to that defending the guilty is somehow a sin or moral failing; I am a bad and immoral person by what I do.  Put differently, they may say what I do is “icky” or that representing “those people” is  “plain wrong.”  It is this same thinking that says it is a sin or moral failing for a guilty person to plead not guilty.  In my previous post, I was attempting to respond to an opinion that many on “the street” hold. In particular, the person I used as my springboard felt that something dishonest happens when a guilty person pleads not guilty.   In hindsight, I should have left the word “ethical” out and instead focused on dishonesty — the concern of the person I was responding to.

Second, I want to respond to a comment left by the anonymous Snacky.  Snacky wrote the following comment.

Interesting post. But I believe that pleading guilty, if one actually is, is probably the right thing to do:

Why force the prosecution to carry and meet this burden? Why cause the court time and money to be wasted?

I don’t see how your argument is distinguished from “plead not guilty because you can.”

I think there are other reasons as well that it’s not ethical to plead not-guilty if one knows that one actually is:

For example, the effect of the plea on the public discourse and culture. I think I could argue that it’s detrimental to public confidence in the legal system to have guilty people plead not-guilty, and maintain their innocence.

I think Snacky’s comment is naive; it lacks an understanding of what really goes on in the criminal justice system.   For one thing, Snacky’s imagined cost savings are more illusory than real.   The judge, the prosecutor, the bailiffs, etc. are all salaried.   If David Defendant enters a guilty plea on his first or tenth court appearance, the cost to taxpayers will likely be the same.   This is not to say that any given case isn’t going to cost the system some extra money; that’s not true.  All I am saying is that letting the wheels of justice grind a little bit probably isn’t “wasting” the resources that  Snacky imagines are being wasted.

With that said, the criminal justice system costs money and that is fine by me.   All criminal defendants have rights.  Where there is right there is a duty.  The accused has a right to due process and the government has a duty to provide that process.  This is our system. This is the system that “We the People” established.  It takes resources to fund this system.  How a person could be sinful, unethical, or morally wrong by exercising the rights given to him by his system is beyond me.

Snacky also appears to imagine a system where a defendant can walk into court on his first appearance and receive Justice.  The criminal justice system isn’t a drive through where a Class 2 can be ordered, wrapped, and delivered in only a few short minutes.  The real criminal justice system is much more messy and slow.   At a first court appearance, chances are the prosecutor hasn’t given any meaningful thought to the offer he or she gives to an accused person.  Of course, this assumes he or she hands the accused a plea offer at all.  At this point in time, the prosecutor probably also has not scrutinized the facts in the police report or talked to the witnesses involved in the case.  Furthermore,  the judge will know little to nothing about the facts of the case.   If the accused were to plead guilty, the judge may ask for a factual basis for the plea, but the judge will probably be more concerned about creating a record than listening to the words the prosecutor recites.   By pleading not guilty and having the assistance of competent counsel, the accused ensures that some meaningful thought is put into his case and sentence.   The wheels of justice grind slowly; a person speeds them up at his peril.

Snacky’s concern about the impact of a not-guilty plea on the public confidence in the legal system is, well, strange. Who says to themselves, “I shall plead guilty and restore confidence in the legal system?” And why should a person say that to himself? Are men made for the Sabbath or the Sabbath for men? Are men made for the legal system or is the legal system made for men?  I also think this suggestion by Snacky has no connection to reality.  Factually guilty people plead not guilty all the time.  Is this really causing the public to lose confidence in the legal system?  I will concede that people make comments about people getting off on technicalities, and our system isn’t perfect, but it is a good system nonetheless.  I think most people have confidence in our system regardless of the problems it has.

These are just a few thoughts of mine; I am not attempting to make a complete or systematic argument. This site is just a blog and nothing more. I hope folks like Greenfield and Bennett, whose sandals I am not worthy to untie, weigh in some more on this topic.

Jeremy Richey

UPDATE:

Scott Greenfield weighs in and says, “To utter . . . ['not guilty'] in response to ‘how do you plead’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Ken Lammers dissents and argues that  “a plea of not guilty is an immoral act.”

FURTHER UPDATE:

Mark Bennett: “[Prosecutors] are there to put lawbreakers in boxes (actual and metaphorical), not to offer them absolution. In other words, if you want to confess, see a priest.”

Walter Reaves: “Not guilty means nothing more than I am going to make you prove your case. To assign any other meaning would turn the justice system on its head.”

David Giacalone: “There are a lot of words and terms that lawyers use differently than the rest of humanity.”


BROUGHT TO YOU BY:
Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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