I get this question fairly often from clients. When a client asks this question, he is not wanting a legal document filed in court (a Motion for Discovery), he is wanting the State’s response to the motion (police reports, videos, etc.). For some reason, some clients refer to the police report and related materials as “my motion for discovery.” I am not sure why this is, but it happens. A motion for discovery is just a legal document asking for discovery; the response to the motion is something completely different.
Archive Page 2
In a previous post, I mentioned that speeding 40+ miles per hour over the limit is a Class A misdemeanor. Starting January 1, 2011, 30-39 miles per hour above the limit will become a Class B misdemeanor. Right now, 30-39 is a petty offense. The Public Act creating the new law also amends the Unified Code of Corrections to prohibit judicial supervision for the Class A speeding offense.
The text of the new Illinois speeding law is as follows:
(625 ILCS 5/11-601.5)
Sec. 11-601.5. Driving 30 miles per hour or more in excess of applicable limit.
(a) A person who drives a vehicle upon any highway of this State at a speed that is 30 miles per hour or more but less than 40 miles per hour in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class B misdemeanor.
(b) A person who drives a vehicle upon any highway of this State at a speed that is 40 miles per hour or more in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class A misdemeanor.
UPDATE (8/25/11). Below you will find the current text of 625 ILCS 5/11-601.5 (emphasis added):
Sec. 11‑601.5. Driving 31 miles per hour or more in excess of applicable limit.
(a) A person who drives a vehicle upon any highway of this State at a speed that is 31 miles per hour or more but less than 40 miles per hour in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class B misdemeanor.
(b) A person who drives a vehicle upon any highway of this State at a speed that is 40 miles per hour or more in excess of the applicable maximum speed limit established under this Chapter or a local ordinance commits a Class A misdemeanor.
1. Today, I presented material on petty traffic and DUI issues at the ISBA Solo and Small Firm Conference in Springfield, IL. I very much enjoyed the experience and I am thankful to have been a part of it.
2. I recently wrote a book review for The Champion. My review is now online (click here).
This past weekend, I attended and completed a three-day course on DWI detection and standardized field sobriety testing. This event, while for lawyers, contained the same training that police officers receive. This course was time and money well spent. My knowledge of field sobriety testing expanded exponentially. I also gained a greater understanding and appreciation for what officers on the street go through. Any lawyer who is serious about DUI defense should attend one of these courses.
Can You Forcibly Resist a Blood Test?
Published September 13, 2010 Driving Under the Influence 1 CommentWordPress records the search terms people use to find this blog. Some unknown person typed the above question in a search engine and found this blog. My answer follows.
It is physically and actually possible to forcibly resist a blood test. But, that is not what the questioner was asking. A better inquiry is whether a person can forcibly resist a blood test and not suffer adverse legal consequences.
Absent a search warrant, the police will probably not force a blood draw. The consequence for refusing a blood test (or urine or breath test) is that the person will receive a longer driver’s license suspension under the Illinois statutory summary suspension law than if the person had submitted to and failed testing.
What if the police have a search warrant authorizing a blood draw? In that case, the person really doesn’t have a choice: the person must submit to the blood draw. If the person forcibly resists the blood draw, further criminal charges in addition to the person’s DUI charge (such as obstructing a peace officer) may result.
As Scott Ealy drove down the interstate, a sign caught his eye: “Police Drug Checkpoint Ahead.” Scott took a photo of the sign.
Such a checkpoint would be unlawful. But what if the sign was just a ruse to get drivers to exit the interstate?
According to the Effingham Daily News (h/t: Scott Ealy), the checkpoint was a ruse:
Marion County Sheriff Jerry Devore said the sign warning motorists of a drug interdiction checkpoint ahead just before southbound traffic reached the the [sic] Kinmundy-Patoka exit — or milepost 127 — was only up for about 90 minutes before being taken down.
Devore admitted the sign was a ruse to get drug-possessing suspects off the interstate at an isolated exit with no services.
“Anyone from out of state would have no reason to pull off,” Devore said. Once off the interstate, deputies looked for Illinois Vehicle Code violations as a reason to initiate a traffic stop. Once the vehicles were stopped, deputies were able to look for drugs or other illegal items.
As described above, this ruse is probably OK. (But, much is going to depend what happens after the stop.)
Why do I say this? Consider the Eighth Circuit case of United States v. Carpenter.
In that case, the police set up a ruse checkpoint on the interstate and then looked for a reason to stop non-local vehicles that exited the interstate. The defendant, who had out-of-state plates, exited the interstate. When the defendant saw an officer following him, the defendant maneuvered to the side of the road in order to make a U-turn. While on the side of the road, an officer stopped the defendant. The defendant reportedly took the exit looking for a gas station, but there were not any gas stations at the exit. The defendant appeared nervous, had a quarter tank of gas, and gave a travel route inconsistent with his car’s rental agreement. The police brought a canine to the scene and the canine alerted to the presence of drugs in the defendant’s vehicle. The police found and seized a quantity of cocaine. Under the totality of these circumstances, the Court said, the police had reasonable suspicion for an investigative detention to let the canine sniff the vehicle and no Fourth Amendment violation existed.
With all that said, the police still can violate the Fourth Amendment while executing these ruses. For example, if a car exits the interstate and travels in a normal manner without violating any traffic laws (and no other unusual circumstances exist), any stop of the car will be problematic.
DUI Supervision: No Record?
Published August 16, 2010 Driving Under the Influence , Expungement , Sentencing ClosedRegarding 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.
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).
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Jeremy Richey (h/t: NCDD Journal)
Jones v. Commonwealth, 279 Va. 52, 58 (Va. 2010)
When a court gives one of my clients a lengthy amount of time (e.g., a year) to have his fines and fees paid in full, I always tell the client to begin making payments right away. Too many defendants make life difficult for themselves by putting off their payment obligations. A defendant who fails to pay his fines risks having his supervision or probation revoked. Furthermore, the government will likely arrest a defendant who fails to pay his fines and fails to show up for court as ordered. Court fines are a debt that will not go away. If a defendant fails to give his fines proper attention, a judge will get the defendant’s attention … and the result may not be pleasant. So, defendants should pay as much as they possibly can each month towards their fines. It is very important that defendants pay off their fines as soon as possible. To do anything other than this is a recipe for disaster.
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.
