Archive for the 'Driving Under the Influence' Category

DUI Supervision: No Record?

Published August 16, 2010 Driving Under the Influence , Expungement , Sentencing Leave a Comment

Regarding Illinois DUI cases, one of the benefits of judicial supervision is that it prevents people from being convicted of DUI. As a matter of law, a person on supervision for an offense has not been convicted of the offense. But, this doesn’t mean that the DUI disappears in any way. A person should not equate the lack of a conviction with not having a record. DUI supervision can’t be expunged (officially erased), so there will always be an arrest and court record where a court sentences a person to DUI supervision.

So, what is the point of not being convicted of DUI? One of the most significant benefits of not being convicted deals with revocation of driving privileges. A sentence of DUI supervision will not trigger a revocation whereas a conviction will.

But note that a revocation in a given case is separate from any statutory summary suspension in the case.   Revocations are often on top of (in addition to) statutory summary suspensions.

Further note that, as a general rule, revocations are worse than suspensions.

Jeremy Richey

Field-Sobriety Refusals

Published August 4, 2010 Driving Under the Influence Leave a Comment

Field-sobriety testing will likely be a part of any given DUI investigation … if the driver does not refuse to participate in the tests.  (The three most common of these tests are the walk-and-turn test, the one-leg-stand test, and the horizontal-gaze-nystagmus test (eye test)).  Why would a driver refuse to participate in these tests if he is innocent?  Don’t only guilty people refuse to participate?  Hardly.  There are several reasons why an innocent person might decline an officer’s request to participate in these tests.   The Supreme Court of Virginia recently gave the following reasons:

[T]here are numerous innocent reasons why a person may refuse to engage in tests that are not required by law, including that a person may be tired, may lack physical dexterity, may have a limited ability to speak the English language, or simply may be reluctant to submit to subjective assessments by a police officer.

Jones v. Commonwealth, 279 Va. 52, 58 (2010).

–

Jeremy Richey (h/t: NCDD Journal)

Jones v. Commonwealth, 279 Va. 52, 58 (Va. 2010)

Litterbugs & Beer Cans

Published June 29, 2010 Driving Under the Influence Closed

Beer Can

This last weekend, as part of my church’s Adopt-A-Highway project, I helped clear trash from the ditches of a local highway.  I helped do this once before, and both times, I was amazed of the amount of beer cans, beer bottles, and other alcohol containers on the side of the road.  Part of me wonders how many people out there are drinking alcohol while driving?

I enjoy defending DUI cases, however, I in no way condone drunk driving (or any other crime for that matter).  There is a difference between defending a case and condoning behavior.  Scott Greenfield recently said it this way:

“[C]riminal defense lawyers are not proponents of crime.  We don’t think crime is good, or acceptable, or tolerable.  We defend people accused of crime.  A nuanced distinction, but a very real one.

When I accept a case, I defend it to the best of my ability.  One reason I enjoy defending DUI cases is that there are many questionable (and downright bad) DUI arrests.  But, those who truly drive drunk, and get drunker while driving, are a danger to us all.   This is unacceptable behavior.  We can and must do better.

Jeremy Richey

HGN in Illinois

Published February 28, 2010 Driving Under the Influence Closed

Case Name: People v. McKown (.pdf) (link to case summary)

Court: Supreme Court of the State of Illinois

Date Decision Filed: 2/19/2010

This important DUI case can be boiled down to two points: (a) the horizontal gaze nystagmus (HGN) field sobriety test satisfies the Frye test; and (b) HGN evidence will only come into evidence at trial if NHTSA requirements are complied with.

For commentary on the case by Illinois DUI guru Don Ramsell, please visit this post at Illinois Lawyer Now.

Jeremy Richey

Memo to Motorists

Published February 14, 2010 Driving Under the Influence Closed

Memorandum

To: All Motorists

From: The Illinois Government

RE: All your base body are belong to us.

YOU ARE HEREBY NOTIFIED that if we want your blood, we will get it (.pdf). Resistance is futile.   We will forcibly restrain you and thrust a needle into your body — repeatedly if necessary — if you resist our attempts to get your blood.  So, just cooperate and give us what we want.  All your base body are belong to us.

DUI Urinanalysis: Improper Sample Collection

Published February 3, 2010 Driving Under the Influence Closed

Case Name: People v. Henry (.pdf)

Court: Appellate Court of Illinois, Third District

Date Decision Filed: 1/19/2010

In this DUI case, a phlebotomist collected the motorist’s urine for testing purposes.   An Illinois regulation provides that “[a] urine sample may be collected by the arresting officer, another law enforcement officer, an agency employee, or a hospital nurse who can authenticate the sample.”  There is no mention of “phlebotomist” in the regulation.   The trial court suppressed the urine-testing results.  The majority opinion of the appellate court remanded the case back to the trial court and ordered it to determine if the regulation was substantially complied with.  “On remand,” said the majority, “the State may rebut the presumption of unreliability with proof that the test results were valid even though the State did not strictly comply with [the regulation].”  The dissenting justice would have reversed (without remand) the ruling of the trial court since, in her view, the list does not exclude unlisted categories of people.

Jeremy Richey

Defendant Not Permitted to Present Defense

Published January 10, 2010 Driving Under the Influence Closed

Case Name:  People v. Faint (.pdf)

Court: Appellate Court of Illinois, Third District

Date Decision Filed: 12/18/09

In this case, the trial court found the defendant guilty of DUI, but failed to give the defendant an opportunity to present a defense or give a closing statement!  Unsurprisingly, the appellate court reversed the trial court’s finding of guilty and remanded the case for a new trial.  It seems that the “DUI exception” to the Constitution does have its limits.

Jeremy Richey

DWLS Not Included in Aggravated DUI

Published January 3, 2010 Driving Under the Influence Closed

Case Name:  People v. Eastin (.pdf)

Court: Appellate Court of Illinois, Fourth District

Date Decision Filed: 12/23/09

In this case, the appellate court discussed whether driving with a suspended license is a lesser-included offense of aggravated DUI when the reason for elevation of the DUI to aggravated DUI is that the DUI occurred while the defendant had a suspended license.  The appellate court held that it is not a lesser-included offense.  The crime is DUI; the aggravating factor (suspended license) is a sentencing matter and not an element of the crime.

Jeremy Richey

Field Sobriety: No Expert Testimony Needed

Published December 21, 2009 Driving Under the Influence Closed

Case Name: People v. Hires (.pdf)

Court: Appellate Court of Illinois, Fourth District

Date Decision Filed: 12/08/09

In this case, the State charged the defendant with Aggravated DUI because the defendant had eight prior DUI convictions.   The defendant did not submit to chemical testing, so the evidence consisted of the arresting officer’s observations of the defendant prior to and after the officer stopped the defendant’s vehicle.   The defendant challenged his conviction based on the sufficiency of the evidence and based on the unreliability of the field-sobriety tests administered to him.  The Court rejected both arguments.   The Court rejected the defendant’s sufficiency of the evidence challenge because “a rational jury could reasonably have inferred that [the] defendant’s erratic driving, slurred speech, and poor coordination stemmed from intoxication.”  The Court rejected the defendant’s field-sobriety argument because the jury, on its own, was able to evaluate the field-sobriety evidence without the assistance of an expert.  It also should be noted that the defendant received a 24-year sentence in prison for this DUI conviction (again, this was his ninth DUI conviction).

Jeremy Richey

Two Counts of DUI

Published November 28, 2009 Driving Under the Influence 1 Comment

I was arrested for DUI and I received two tickets.  Is that bad?

It is bad that you were arrested for DUI, however, you should not be concerned about receiving two citations.  Whenever a person is arrested for driving under the influence of alcohol and blows .08 or over, the police issue two citations.  One citation will allege a violation of the .08 law (625 ILCS 5/11‑501(a)(1)) and the other will allege a DUI violation without regard to the BAC of the driver (625 ILCS 5/11‑501(a)(2)).  The circuit clerk will file both of these citations under a single DUI case number and each citation will be a separate count of DUI under that DUI case number.   So, if you blew .08 or over and received two citations, the police officer wasn’t punishing you by writing two citations; the officer was simply proceeding in the manner that officers usually proceed in this type of case.

Jeremy Richey

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Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.