YOUR OUT OF STATE DUI: WHAT YOU CAN DO IN ILLINOIS

You were celebrating the holidays in Illinois with friends or relatives. You had a few drinks too many before starting the long drive to your home state. Before you left Illinois, a trooper pulled you over, and now you are charged with DUI.

What can you expect? Can you get any consideration for the fact you live out of state?

Unfortunately, the case cannot be transferred to your home state. Your court appearances in Illinois are mandatory, and you will have to appear at least once. If you intend to contest your DUI—which is usually a good idea, you may have to come at least three to five times. However, in some instances, your attorney may be able to work something out in advance with the prosecutor so that you won’t have to appear on your first date. It may also be possible to schedule other court dates to some extent around your availability.

If you plead guilty or are convicted at trial, you will be required to get an alcohol evaluation. The evaluation must usually be done in the same county as your offense. The evaluation will recommend some level of treatment such as alcohol classes. If the judge allows, you may able to complete your requirements in your home state.

If you do get an out of state DUI, do not treat it lightly. Depending on where you live, a DUI in Illinois can have serious consequences in your home state.

If you are charged with DUI or a similar offense, contact an experienced criminal law attorney immediately. An experienced attorney can review your case for its best possible defense. An attorney can also help you navigate through the court system to minimize the amount of stress and inconvenience of an out of state offense.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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DO THE CHARGES AGAINST YOU COMPLY WITH ILLINOIS LAW?

In order to charge you with DUI or another offense, the prosecution must prepare written charges against you. Under Illinois law, the charges called the indictment, must contain certain elements. If the indictment is missing an important element, the charges could in limited cases be dismissed.

Illinois statute 725/5-111-3 requires the indictment to contain: 1) the name of the offense, 2) the statute violated, 3) the nature and elements of the offense, 4) the date and county where the offense occurred where possible, and 5) your name as the accused, if known. If the state does not know your name, they may use any name or description that would be reasonably certain to identify you.

If the state seeks an enhanced sentence based on a prior conviction, the indictment must provide that information. The state must also notify you, either through the indictment or other writing before trial, of any fact that would allow the state to obtain a greater than maximum sentence.

If the indictment contains minor mistakes such as a misspelling or an unnecessary allegation, the state may simply correct the charges. If the mistake is substantive, the charges could be dismissed before the trial.

If you raise the defective indictment on appeal, the court will examine whether you were prejudiced in your defense because of the mistake.

In People v Swift, a defendant convicted of Aggravated DUI alleged that the indictment omitted the element that his conduct proximately caused the victim’s injuries. The court looked at whether 1) the indictment was defective, 2) the defect was formal or substantive, 3) the defendant was required to show the mistake prejudiced his defense, and whether it in fact prejudiced his defense. The court held that the mistake, while substantive, did not prejudice the defense, and therefore, his conviction would stand.

If you are charged with DUI or a similar offense, contact an experienced DUI attorney immediately. An attorney can review your case to present your best possible defense. If the prosecution or police failed to follow the law, an attorney may be able to petition the court to dismiss the case or at least restrict the prosecution’s case in some other fashion. Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you can on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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DID YOUR CAR COMMIT A CRIME? THE ILLINOIS LAW ON FORFEITURE

After you were arrested for DUI or another offense, the state took a look at your expensive car. Maybe the car really belonged to an innocent third party. In any case, the state wants to keep it.

Can they do that? What can you do?

Illinois criminal law allows the state to seize a vehicle, including a car, boat or airplane, involved in a crime. The state files a civil forfeiture action against the vehicle itself, and thus the property would be listed as the defendant.

Under the Illinois Seizure Law, the state may seize any vehicle used with the owner’s knowledge and consent in the commission of a crime. Such crime may include arson, robbery, predatory sex offenses, murder, kidnapping, drug offenses, gambling, DUI and stalking. The property must have helped facilitate the offense in some way.

Within 14 days of a seizure, the state must request a preliminary hearing for the court to determine if there is probable cause to seize the property. The owner need not be notified at this stage. Once the court determines there is probable cause, the state must file the forfeiture action and notify the owner. The vehicle is held until the court’s final decision.

In a forfeiture, the state must prove that the vehicle was used in the commission of the offense by a preponderance of the evidence. The owner may then show that he or she had no reason to know the vehicle would be used in that way. The state may then disprove the owner’s claims. If the state wins, you lose your property.

If you have a vehicle subject to a forfeiture, contact an experienced criminal law attorney immediately. An attorney can guide you through the procedure and help present the best possible defense to get your property back.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: People ex rel Brendon F. Kelly vs One 2008 Chevy Trailblazer.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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THE AUTOMATIC DUI SUSPENSION OF YOUR DRIVER’S LICENSE: WERE YOU ON PUBLIC OR PRIVATE PROPERTY?

If you are charged with DUI in Illinois, the Secretary of State can automatically suspend your driver’s license—but only if you were not on a “public highway.”

The law defines a “public highway” as “The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.” (625 ILCS 5/1-126.)

A parking lot may be a public highway even if it is on private property. For example, a Metra train parking lot, maintained by a municipality, is a public highway. However, a grocery store parking lot is not a public highway if the lot is privately owned and is not maintained by the municipality. A restaurant lot is also not a public highway where it is fenced and privately maintained and signs indicate parking is for patrons only.

The defendant has the burden of proving they were not on a public highway. In one Illinois case, the driver lost because she did not present evidence as to whether the Jewel grocery store parking lot was publicly owned or maintained. See People v Helt.

If you are charged with DUI, you should consult an experienced DUI attorney immediately. An attorney can file a petition seeking to overturn your automatic driver’s license suspension. If the petition is granted, then you will not lose your driving privileges. While the petition may be a long shot, the odds of success depend on how quickly you act after your DUI arrest.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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CAN THEY TAKE MY BLOOD WITHOUT A WARRANT? THE U.S. SUPREME COURT SAYS “NO.”

In a recent decision, Birchfield v. North Dakota, the U.S. Supreme Court held that a state cannot require you to take a blood test in order to enforce its drunk driving laws. Subject to certain exceptions, the police must get a warrant.

Under the Illinois implied consent law, you are deemed to have consented to DUI tests once you are arrested for DUI. You may still refuse the tests, but your refusal comes at a price—the extended suspension of your driver’s license. In its recent decision, the U.S. Supreme Court reviewed a North Dakota law which subjected a driver to criminal penalties for refusing a blood test.

The court held that breath tests are not intrusive and do not violate privacy concerns. A blood test, however, is another matter. Blood tests pierce the skin and blood can be stored for other purposes besides DUI evidence. While the state may fear that evidence of alcohol will be lost as blood metabolizes, a breath test provides police with a less intrusive option than a blood test, and a breath test may be performed as part of a search incident to an arrest. Therefore, drivers cannot be criminally punished for refusing to submit to a blood test.

Police may still draw your blood with your consent. Even then, the state must follow certain rules for taking and storing the sample.

If your blood was taken without your consent for a DUI, consult an experienced attorney immediately. Depending on how and why the sample was taken, you may have grounds to suppress the test results. Even if the police strictly followed the law, a DUI attorney can probe for other weaknesses in the state’s case, or if all else fails, negotiate a more favorable plea agreement than you might do on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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FAILURE TO REPORT AN ACCIDENT IN ILLINOIS

You left the bar feeling pretty toasty. Unfortunately, on the way home, you got into an accident. You now have a dilemma. If you report the accident, the police may charge you with DUI. But if you don’t report the accident, you could be charged with a Class 2 felony, punishable by 3 to 7 years in prison, which can be upgraded to a Class 1 felony if the accident is fatal.


Under 625 ILCS 5/11-401(b), if you do not remain at the scene of an accident, you must report that accident at a police station within one half hour of the accident unless you are hospitalized or incapacitated, in which case you must report the accident no later than one half hour after discharge. If you report the accident as required by law, you may not be prosecuted for failing to stay at the scene.

If you are arrested for leaving the scene or for failing to report the accident, you can be subjected to chemical testing for intoxication within 12 hours of the accident, and your driving privileges can be suspended.

If you are charged with DUI or other offense, contact an experienced attorney immediately. An attorney may review your case for your best possible defense. If the police acted improperly, the attorney may be able to petition the court to suppress the evidence from any search. Even if this is not possible and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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DRIVING ON A REVOKED/SUSPENDED LICENSE CAN LEAD TO STIFFER DUI PENALTIES

A recent Illinois appellate case underscores the proposition that if your license is revoked or suspended, it’s revoked or suspended until the Secretary of State says it’s not.

If you lose your license because of DUI, you cannot drive until you apply to get your license back from the Secretary of State even if the term of your DUI sentence is over. In some cases, you may only need to pay a fee. In others, you may have to go to a hearing and present substantial evidence.

If you do drive while revoked or suspended based on an alcohol offense, the penalties for later offenses can be increased.

In People v Viverette, the defendant argued that his license could not be revoked for leaving the scene of an accident because it had already been revoked for an earlier offense. Therefore, the revocation for leaving the scene could not be used to increase the penalties for his later DUI. (The defendant in fact had 15 prior convictions for DUI.) The court disagreed. Instead, the court held that any qualifying revocation could serve to bump defendant’s DUI from a misdemeanor to a felony.

The Illinois law allows the state to increase the class of your offense depending on the number of prior DUIs if you are driving on a suspended or revoked license. (See 625 ILCS 5/6-303.) For example, a second offense becomes a Class 4 felony rather than a Class A misdemeanor. In the above case, the defendant was convicted of a Class 2 felony based on his 15 prior DUIs.

If your license has been revoked or suspended, you should consult an attorney on whether you qualify for reinstatement and how best to proceed. The Secretary of State is a tough customer, and an attorney can help you present your case in its best possible light.

If you are charged with DUI or similar offense, contact an experienced DUI attorney immediately. An attorney may review your case for your best possible defense. Even if the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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ILLINOIS LAW REQUIRES POLICE TO ASK BEFORE GIVING A PORTABLE BREATHALYZER TEST

Recent Illinois case law has clarified that an officer must ask you to take the portable breathlayzer test (PBT) and give you enough time to refuse before giving the test, or your case could be dismissed.

If you are stopped for DUI, police may ask you to perform certain field tests. An officer may also ask you to take a PBT. The PBT is not admissible into evidence but can be used to determine whether there was probable cause to arrest you for drunk driving.

Before giving the test, the officer must ask you to take it. Illinois requires that you have a reasonable opportunity to refuse the test although the officer need not inform you of your right to refuse. As long as the officer requests the PBT without commanding submission and you are given an opportunity to refuse, the PBT is considered voluntary and complies with state law.

In People v Taylor, the officer essentially placed the PBT device in front of defendant’s mouth without asking the defendant to take the test or giving the defendant enough time to refuse. As a result, the court threw out the arrest stating that the test could not be used to provide probable cause.

If you are charged with DUI or similar offense, contact an experienced attorney immediately. If the police acted improperly, the attorney may be able to petition the court to suppress the arrest. Bear in mind that each case is very fact specific, and judges may disagree on whether you had enough time to refuse a PBT.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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EXTRADITION TO ILLINOIS: THE UNFINISHED CRIMINAL CASE

With ever-expanding access to information, police in one state can easily learn about any criminal charges you have open in another state. And that can lead to extradition.

Extradition means you could be arrested in your current state and brought back to face charges in the original state. Whether you will be extradited is up to the county prosecutor, and it is impossible to predict their decision in any given case.

Sometimes extradition is the result of unfinished business. Perhaps in your younger days you got into trouble with the law. You missed your court date, so the judge issued a warrant for your arrest. Or maybe you did go to court but failed to finish the terms of your sentence. For example, you may have been required to pay a fine or perform community service. In either case, the county where your original charges occurred may choose to extradite you once police learn your whereabouts, such as through a routine traffic stop.

If you are at risk of extradition to Illinois, contact an experienced Illinois criminal law attorney immediately. An attorney can review the facts of your case for your best possible defense. For example, an attorney may help you through the court system to clear the underlying problem in your original case. At times, this can mean negotiating a more favorable plea agreement than you might be able to get on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.).

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CHANGES TO ILLINOIS LAW ON MARIJUANA AND DUI

Changes to Illinois law tackle the problem of determining how much marijuana is too much for purposes of DUI. The new law took effect July 29, 2016.

The new law provides a limit for driving under the influence of marijuana much like the .08 standard for blood alcohol. Under the new law, you will be presumed to be impaired if you have a tetrahydrocannabinol concentration of either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance within 2 hours of driving or being in actual physical control of a vehicle.

The new law also takes marijuana out of the “trace law.” Under the “trace law,” you can be convicted of DUI if you have any unlawful substance in your system, even if your driving is not impaired. The trace law makes it easy for prosecutors since they need not prove that a drug influenced your driving. The mere fact the drug is in your system is enough to convict you. Because marijuana can remain in your system for up to 30 days, the trace law led to extremely harsh penalties for actually unimpaired drivers. The trace law still applies to other drugs.

If you are charged with DUI or similar crime, contact an experienced DUI attorney immediately. An attorney can review your case for your best possible defense. Even if the evidence against you is overwhelming, an experienced attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

Source: Amendments to DUI Law.


(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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