"Field Sobriety Tests in Illinois may be rejected without penalty, and the risk of an erroneous interpretation by an officer far outweigh the benefits of performing them."
This article does not give DUI practitioners a general overview of the DUI laws, describes how a DUI arrest occurs, and provides general information to help you answer that question too often asked by customers and others: "What should I do if I ' m was DUI? "
To begin, note that there are two basic partsa DUI, the summary suspension and criminal prosecution.
The criminal charge
"DUI" stands for "Driving under the influence" of alcohol, drugs or a combination thereof. 625 ILCS 5/11-501. The penalty for a first time DUI is a Class A criminal offense with imprisonment of up to 365 days in jail and / or a $ 2500 fine. There are four basic elements of DUI:
• Driving or actual physical control
• for a vehicle
• anywhere in the state
• duringunder the influence of alcohol and / or drugs.
Let's look at the first three elements individually.
"Driving or actual physical control." The phrase "driving or actual physical control" means that a person get a DUI, perhaps he or she is simply sleeping or sitting in a parked car. See, eg, City of Naperville v Watson, 175 Ill 2d 399, 677 NE2d 955 (1997). Whether a person in actual physical control is a matter of fact. Courts look at factors such as ownership,whether the subject has the key to whether the ignition key to be whether the object is in the driver if he or she owns the vehicle where the vehicle is located, etc., to determine the actual physical control. See, eg, People v Brown, 175 Ill App 3d 676, 530 NE2d 74 (2d D 1998).
In addition, the police must prove you do not respect the person in the car that he or she is physically in control "to". Evidence as the only person walking on a lonelyStreet one block from a car in a ditch may be sufficient to be determined actual physical control or recent projects. People v Jones, 198 Ill App 3d 572, 555 NE2d 1143 (3d D 1990).
"From each vehicle." In Illinois, a vehicle is defined as "[e] very device in, may be carried on or through any person or property or, or hauled on a highway, except devices moved by human power, devices used exclusively on stationary rails or Title and snowmobiles. "625 ILCS 5/1-217.
Thus, cars,Motorcycles, mopeds and even electric scooters can be considered vehicles. In fact, even a horse can be considered vehicles. See 625 ILCS 5/11-206.
The fact that a vehicle is inoperable no defense, if it is granted, a junk certificate and falls under the definition of junk vehicle under 625 ILCS 5/1-134.1. People v Cummings, 176 Ill App 3d 293, 530 NE2d 672 (3d D 1988).
"Everywhere in the state." It is no defense to the criminal charge of DUI, that the carwas not on a highway. ( "But I was parked in my driveway!") People v Guynn, 33 Ill App 3d 736, 338 NE2d 239 (3d D 1975).
The summary suspension
In Illinois, drivers can receive up-front (ie after the 46th day after the arrest) for the suspension of their driving privileges if they are arrested for an offense for DUI and then the guests, 08 or higher on a breath / blood test or illegal drugs in their system, or if they refuse to chemical tests. 625 ILCS 5/11-501.1.
DriversNot have been arrested for DUI in the past five years, face a three-month suspension if the test (s) or a six-month suspension to fail if they refuse. 625 ILCS 5/11-500, 625 ILCS 5/6-208.1. In any case, they may qualify for an emergency license for work or school with effect from 31 Date of suspension. 625 ILCS 5/6-206.1. For all others, the length of suspension for one year and three years in the absence of rejection. 625 ILCS 5/6-208.1. No emergency license is available. 625 ILCS5/6-206.1.
Thus, in most cases, your client is faced with a dilemma in the police, "What do I take the breath test, or should I refuse?"
Right to counsel before chemical tests. Most DUI lawyers would recommend that customers do not resolve, the test to pass if they are absolutely sure about. In Illinois, however, a person has no right to consult a lawyer before deciding whether or not to tolerate, one test. People v Gaddi, 145 Ill App 3d 227, 494 NE2d 696 (1. D 1986).
However,If an officer of the defendant has the opportunity to consult with an attorney before the test, he or she can not unreasonably interfere with the exercise of this right. People v Kern, 182 Ill App 3d 414, 538 NE2d 184 (3d D 1989). Moreover, the mere claim means after consulting with an attorney, standing alone and not as a condition for which the test does not provide a denial of the summary suspension ends. Id
A typical DUI arrest
The typical DUI arrest takes place in fourPhases: (1) vehicle in motion, (2) personal contact, (3) pre-arrest screening and (4) after the arrest of the processing.
Vehicle is in motion. At this stage the officer has asked himself the following question: "Should I stop the car?"
Typically, a vehicle for any violation of the rules of the road, such as the wrong track can be stopped using speed, or even an equipment violation. See, eg, People v Hood, 265 Ill App 3d 232, 638 NE2d 264 (4. D 1994).
A police officer mayHowever, to stop a vehicle solely on an anonymous tip about "drinking and driving is based." See, eg, People v Moraca, 124 Ill App 3d 561, 464 NE2d 312 (2d D 1984). In addition, driving too slowly to justify weaving in the lane, and unusual (but legal) practice, the stopping of a vehicle. City of Highland Park v Lee, 291 Ill App 3d 48, 683 NE2d 962 (2d D 1997) and People v Dionesotes, 235 Ill App 3d 967, 603 NE2d 118 (2d D 1992), People v Manders, 317 Ill App 3d 337 , 740 NE2d 64 (2d D 2000).
Other formsContact persons are arriving at accident scenes or the localization of a sleeping driver behind the wheel. These areas are as a community care-taking functions in which no "Stop taking place" in fact. See People v Murray, 137 Ill 2d 382, 560 NE2d 309 (1990).
The personal contact. After stopping a vehicle, the officer makes observations to determine whether they ask the driver to leave the vehicle. The officer is to observe for the odor of alcohol, bloodshot and / or glassy eyes, slurred speech, fumblingwith the licensing and other indicia of intoxication. The officer will ask in general, including whether the driver, drink, and if so, how much, when and where. He or she can ask a question that two independent responses, such as "What year is your car needed and where are you going tonight?" in order to see if the driver can really think.
The last part of human contact phase can ask on the subject, say, a part of the alphabet or count backwards from 67 to 43, in theAttempt to estimate mental impairment.
At this point, the driver may be asked to stop the vehicle for further testing.
To pre-arrest screening. Pre-arrest screening consists mainly of field sobriety tests and portable breath testing. In Illinois, field sobriety tests and portable breath tests are optional, and a driver shall provide no penalties for refusing to participate in the trials.
Further, in Illinois it is not necessary that the field sobriety tests are valid, and standardized,test with the exception of the horizontal gaze nystagmus ( "HGN") to. See People v Bostelman, 325 Ill App 3d 22, 756 NE2d 953 (2d D 2001); Basel v People, 193 Ill 2d 545, 740 NE2d 1 (2000).
The most common field tests are the "one leg", "off and on foot, and HGN tests. These three tests have their source, and validated from the National Highway Traffic Safety Administration (NHTSA) develop a standardized field sobriety tests that were created, and in the early 1980s.
ModifiedAre versions of the "one leg" test in Illinois still generally require a person standing on one leg with the other grew up in the air for at least 30 seconds.
Testimony in court, whether a person has passed or failed this test often depends on the police or the special officer administering the test. The validity of these tests, if it was not conducted in compliance with NHTSA standards never been proven.
The "walk and turn" test also variesamong the officers and departments. But in general, however, requires testing of a person for nine steps heel to toe walking in a straight track, pivot and walk back nine steps heel to toe in a straight line. Unfortunately, if a person has passed or not is left to officer discretion in Illinois, despite the clear dictates of the NHTSA tests that are not valid unless it is followed standardized administration and scoring.
The portable breath test employs hand-held devices used to estimatea person, the blood-alcohol concentration. All manufacturers of these devices require a minimum of 15 minutes left to this disadvantage of the test results.
Post-arrest processing. Post-processing of a DUI arrest, including chemical examination of an arrested and an interview process. Drivers have the right to refuse to be interviewed after DUI arrest, and their silence can not be used against them in court.
The chemical tests can be blood, breath or urineTests for alcohol and drugs. 625 ILCS 5/11-501.2. Of these three is as the most accurate blood tests for alcohol or drug influence. Urine is considered the least accurate. What breath testing, said the Illinois Supreme Court that there is an "empirical fact that breathalyzers tests, while generally valid, is not fool-proof." People v Orth, 124 Ill 2d 326, 530 NE2d 210 (1988).
A person who submits the chemical test, the right to obtain independent verification of his ownElection by the law. The courts have never talked about how this law can or should be enforced. 625 ILCS 5/11-501.2 (a) (3).
The answer to the late-night call
As a general rule, consider the following points when the late-night phone call from a customer.
Field Sobriety Tests in Illinois are optional and may be rejected without penalty. Since Illinois does not require these tests be validated by the scientific or medical community, the risk of erroneousInterpretation of an officer far outweighs the benefits of the attempt to fulfill them.
Portable breath tests in Illinois are optional. Since you no longer need the rules for portable breath testing, to comply with the officer with the recommended manufacturer's operating manual procedures, the risk of erroneous results on the benefits far a recording.
Chemical testing in Illinois consists of breath, blood or urine tests. Because a driver for refusing to be punished thisTests may want to avoid a lawyer to advise whether a customer (or wear) refuse these tests. Note, however, that it is generally much more difficult to successfully pursue a person who has failed the chemical test to defend.
Statements of an accused person on consumption of alcohol and / or drugs rarely help the situation. A client should always be advised to cancel an interview and avoid possible misinterpretation by the investigating authority police.
Customers who have recently been arrestedshould be advised to take the following steps.
• Videotape her condition after she was released from prison to potential useful information at trial.
• Photograph the area in which any field tests for weather, bumps or other conditions that may have compromised the fairness of the test.
• Videotape the route caused by the motorist.
• Tape record their speech as soon as possible.
• Obtain an independent blood tests as soon as possible,if helpful.
• Seek the advice of an experienced DUI lawyer as soon as possible.
Front-line help
DUI defense has become a very technical area of practice in the past 15 years, including aspects of criminal law, civil, degradation law and forensics.
However, family physicians can provide front-line help, even if they intend to refer the case to an experienced practitioner DUI. This article contains a scaled sketch of theProcess of DUI lawyers who concentrate their practices in other areas.
By Donald J. Ramsell
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