Archive for August, 2010

A Clever Ruse

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.

Jeremy Richey

DUI Supervision: No Record?

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

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)

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.