CAN I STAY OUT OF JAIL ON AN AGGRAVATED DUI BEFORE TRIAL?

Even though Illinois abolished cash bail, you may still be held in jail on a DUI before trial if  you are a threat to safety or a flight risk. Even so, the state must show by clear and convincing evidence that  less restrictive conditions than jail would not avoid this threat.

At your pretrial release hearing, your attorney may be able to argue that some combination of conditions would protect public safety and avoid your flight.  Perhaps you could wear a SCRAM device which monitors your drinking, or at least, go on electronic home monitoring.

In deciding your release, a court looks at:  (1) the nature and circumstances of your offense; (2) the weight of the evidence against you; (3) your history and characteristics; (4) the nature and seriousness of the specific, real, and present threat to any person that your would pose; and (5) the risk that you will obstruct or attempt to obstruct the criminal justice process. No one factor is dispositive.

In People v. Luna,  the defendant failed to show that a combination of conditions short of jail would protect the public. But in that case, the defendant had not had a valid driver’s license since 1989 and had five prior DUI convictions.

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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WHAT TO EXPECT ON A SECOND DUI

You swore you’d never drink and drive again, but you did it anyway and now you have a second DUI.

What can happen to you? What can you do?

As you might expect, the penalties are greater for a second  DUI. If convicted, you may be sentenced to a mandatory minimum of five days in jail or 240 hours of community service on top of other criminal and secretary of state sanctions. See 625 ILCS 5/11-501(c)(2).  (A first time DUI is a Class A Misdemeanor punishable by up to a year in jail and a $2,500 fine, but actual jail time is rare.)

If you were still serving your sentence on the first DUI when you got your second, the news is even worse. You  may be resentenced on your first DUI as well as being charged with the violation. If you were driving on a revoked or suspended license, you could also be charged with that offense along with its added jail time or community service.

Is your situation hopeless? Not necessarily. Many of the same rules from a first offense still apply. The State must still prove beyond a reasonable doubt that you were both driving and drinking, and that your driving was impaired.

Even if you were driving, did the police have probable cause to stop you? Were you violating any traffic rules. If not, an experienced attorney may ask the court to suppress the evidence from the stop.

Were you impaired? If you refused  the breathalyzer and/or the field sobriety tests or did well on them, the state might have a tougher time proving this was the case. Furthermore, a breathalyzer slightly over the .08 legal limit may not be enough to prove impairment.

If you have questions about your DUI or other criminal or traffic matters, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

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CAN I BE CHARGED WITH DUI IF I HAVE A MEDICAL CANNABIS CARD?

 

The answer is yes.  But your cannabis card makes a difference as to what the state must prove.

As of January 1, 2020, you may legally consume certain amounts of cannabis if you are over age 21. If you have a medical cannabis card, you may only be prosecuted for a marijuana DUI if you drove impaired. Without the card, you may be prosecuted if you were over the legal limit: a delta-9-THC concentration of either 5 nanograms per milliliter of whole blood or 10 nanograms per milliliter of another bodily substance.  This limit does not apply if you have a valid registry card.

If you have been charged with a DUI or criminal-related offense, contact an experienced attorney immediately.  An attorney can review your case for its best possible defense.  Did the police follow legal procedures in stopping you? Can the state prove all the elements beyond a reasonable doubt, such as you were the driver or you were impaired?  Even if the state’s evidence is airtight, 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.

Reference: People v. Lee.

(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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WHAT CAN HAPPEN WHEN YOU VIOLATE PROBATION IN ILLINOIS?

Your original criminal case ended in a sentence of supervision or probation, albeit with certain conditions.  You thought you were done.  But now the state is trying to violate you.  Maybe you failed a drug test, failed to pay a fine or got in trouble for another offense.

What can happen to you?  What can you do?

After the state petitions the court to violate your probation/supervision, you may be summoned to appear for a hearing, or in some cases, arrested.  At the hearing, the state must prove your violation by a preponderance of the evidence. This is easier for the state than the beyond a reasonable doubt standard required in criminal trials. Your confession of guilt may be all the state needs to meets its burden

If the state wins, the judge can resentence you.  Perhaps your supervision will become a conviction.  Perhaps you will have to serve some time in jail.  Bear in mind that if your violation is based on a new offense, you will still have to defend the new offense.

Whether the evidence is enough for a judge to violate you depends on your particular judge.  An attorney familiar with your court house may be able to present your case to your judge in its most favorable light.  An attorney can highlight weaknesses in the state’s case or attempt to negotiate a more favorable outcome.

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.

Reference:  730 ILCS 5/6-6-4: Violation, modification or revocation of probation.

(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 YOU BE CONVICTED OF DUI IF YOU ARE BELOW THE LEGAL LIMIT?

Even if your breathalyzer reading is below .08, police can still charge you with DUI. That’s because the .08 limit is only a legal presumption that you were intoxicated.

A reading below .08 can help disprove that presumption of drunk driving.  But if you slurred your speech, had glassy eyes, drove erratically and messed up the field sobriety tests, a judge or jury can still convict you.

Can you still fight the charges? Absolutely. The State has the burden of proving all  elements of the DUI beyond a reasonable doubt. An experienced attorney can reviewyour case for  its best possible defense.  Did police have a reason to stop you?  If not, an attorney can petition to suppress the evidence from your stop.  Can the state prove it was you  driving?  Is there enough evidence that you were impaired?  If not, you could win an acquittal.

Even if your breathalyzer is at or  slightly over .08, you may still be able to fight the charges. Once again, the .08 limit is only a legal presumption. An experienced attorney may be able to show that you were not impaired despite the slightly higher reading.

If you have questions about your situation, feel free to contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com  for advice.

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THE PROS AND CONS OF TAKING THE BREATHALYZER

You were on your way home from a night out on the town when the police pulled you over for a minor traffic violation.  They asked you to perform some field sobriety tests and take a breathalyzer.  Should you do it?  Here are some pros and cons:

PRO:

(1) Taking the Test Cuts Down on the Length of Your Driver’s License Suspension:  After a DUI arrest, the Illinois Secretary of State will automatically suspend your driver’s license for a certain length of time (although you can try to fight this).  For a first-time DUI, the suspension lasts  six months.  If you refuse the tests, your suspension will be twice as long.

(2) If you’ve had very little to drink, the breathalyzer may show you were well below the limit of .08.  Likewise, if you ace the walk-and-turn and one-leg stand tests, you may win your case at trial. However,  if you drove badly, did poorly on the field sobriety  tests and generally looked lost, a low breathalyzer may not help. Further, you may not be the best judge of how drunk you really are, especially if you’ve had mixed drinks.

CON:

(1) If you take the tests, you may be handing the state the evidence it needs to convict you.  The state can charge you with two types of DUI–impaired driving and blowing over the .08 limit.  If you take the breathalzyer, you could guarantee a conviction on at least one of those charges.

(2) A high breathalyzer result may lead to a more severe sentence than if you hadn’t taken the tests or breathalzyer.

(3)  A high breathalzyer could also lead to longer and more expensive court-ordered alcohol treatment.

If you are charged with DUI or a similar offense, contact an experienced attorney immediately.  An attorney can review the evidence in your case for its 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 a question about this or another traffic or criminal matter, please contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.

 

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THE ABCs of DUI Defense

You didn’t see the cop until you went through the stop sign. Or maybe you were in an accident after leaving a party, and the cops were called. Now you are charged with drunk driving.  Can you defend your case?

To be convicted of DUI in Illinois, the State must prove the elements of the offense beyond a reasonable doubt. These elements are: 1) you had too much to drink, and 2) you were driving.

To prove  drinking, the State must show  you were over the legal limit of .08, or that you were so intoxicated that it impaired your driving. Did you take the breathalyzer? Did you perform any field sobriety tests? If the answer is no to both questions, you could still be charged with DUI based on what the police saw, but it may be harder for the state to prove their case.

Suppose you refused the breathalyzer but you took the field sobriety tests? You may still have a defendable case. Most police video their encounters with potential offenders. How do you look on the video? Some defendants manage to ace the one-leg stand and the walk-and-turn tests. If you did well, the state might have a tough time proving you were too impaired to drive.

What if you failed the breathalyzer? If you were only slightly above the .08 legal limit and you looked good on the video, you may still have a defendable case.  Furthermore, in Illinois, a breathalyzer machine is considered accurate if it registers within .009 of the actual result. Therefore, if you blew a .087, there may be some doubt as to whether you or the breathalyzer device were over the legal limit.

What if your breathalyzer result was higher? Can the state then prove you were driving? If you were in an accident and the police arrived after the fact, something still has to place you behind the wheel of the car.

Even if the police saw your driving or had a witness, did they have probable cause to stop you? If you obeyed all traffic laws and  stopped randomly, you may be able to quash your DUI on this basis.

If all else fails (i.e., the police saw you weaving all over your lane, and you failed the breathalyzer and the field sobriety tests), an experienced attorney who is respected in your courthouse may help you negotiate a more favorable plea agreement than you could on your own.

If you have questions about a DUI or other criminal matter, contact Matt Keenan at 847-568-0160 or   matt@mattkeenanlaw.com.

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DID THE OFFICER’S REASON FOR STOPPING YOU DISAPPEAR?

You were driving down the road when you thought you saw an animal so you slammed on your brakes.  Then you noticed a police car behind you. After a few blocks, the officer stopped you, even though your driving was just fine despite having had a few beers.  Can the officer still make the stop?

To stop you, an officer needs a reasonable suspicion based on articulable facts present at the time of the stop.  However, under certain circumstances, that reasonable suspicion can disappear or dissipate.  Dissipation usually occurs when suspicion is based (1) on the vehicle’s appearance such as a license plate that at first appears missing, or (2) when information is related to the car’s owner, such as the owner has a suspended license, but the driver is not the owner.

Illinois courts have not fully addressed whether driving well after you aroused an officer’s suspicion is enough to dissipate that suspicion. Some case law suggests that good driving after an officer observes other signs of DUI is not enough to make your stop illegal.  However, a judge might still find that an abrupt stop by itself does not provide reasonable suspicion.

Whether an officer legally stopped you is a highly fact-based issue which different judges may see very differently.  An experienced attorney who is familiar with your courthouse may be able to present your case in its most favorable light to your particular judge.  The attorney can petition the court to suppress your stop which, if successful, at times results in your case’s dismissal.

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.

Reference: People v. Tennort.

(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 AN OFFICER’S PREJUDICE BE A DEFENSE TO DUI?

You had an argument with your wife, and the police came to your house.  After you both cooled off, the officer gave you a stern talk but decided not to make an arrest.  The very next night, the same officer pulled you over for DUI on what seemed like a trumped-up excuse.

You believe the officer has it in for you.  Is that a defense to your DUI?

In truth, each DUI case is unique. An officer’s dislike, prejudice or grudge against you could make a difference to a judge.  However, few officers are likely to admit under oath their belief that you or people like you are bad news.

Bear in mind that many villages have a small police force.  As such, it is hardly unusual for the same officer to arrest the same defendant more than once. Therefore, a judge may not be willing to dismiss your case based on repeated arrests by the same officer.

If you have real evidence of bias or prejudice, you could testify about it at trial, or better still, have another witness testify on your behalf.  Did a passenger in your car hear the officer make racist remarks or state that he wanted to “make you pay?”

Even if you can prove an officer had a grudge against you, the outcome of your DUI will likely stand on whether the state can prove beyond a reasonable doubt that your driving was impaired.

If you are arrested for DUI or a similar offense, contact an experienced attorney immediately. An attorney can review your case for your best possible defense.  Did the officer have probable cause to arrest you or was their cause based on prejudice against you?  Can the state prove all the elements of your crime beyond a reasonable doubt?  Even if the officer acted legally and the evidence 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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CAN POLICE USE THE RESULTS OF A HOSPITAL BLOOD TEST AGAINST YOU?

You thought you were safe to drive, but unfortunately, you caused an accident.  An ambulance took you and the other party to the hospital.  At the hospital, the nurse drew your blood to run some tests.  One test was for blood alcohol, which came out clearly over the limit.  Can the state use the results to convict you?

The rules about using a hospital blood test as evidence are often tricky and fact specific.  Generally, compulsory testing of blood and other bodily fluids is a search under the Fourth Amendment.  The Fourth Amendment applies to private individuals such as medical personnel when they act as agents of the state.  Did the nurse draw your blood because officers asked for it, or because the test was needed to treat you?

For example, in People v. Schantz, the defendant turned in front of an oncoming motorcycle, killing the cyclist.  The defendant went to the hospital but did not seek medical care.  There, the nurse drew her blood solely at the officers’ request.  The court found that the nurse was acting as an instrument of the state.

The court then looked at whether the blood draw was otherwise reasonable under the Fourth Amendment.  Did it fall under an exception such as exigent circumstances, or did officers have time to get a warrant?  While the natural dissipation of alcohol could support a blood draw in a specific case, it could not be used as a general excuse to evade getting a warrant. The court found no exigent circumstances. Although there was some delay involved in securing the crime scene and attending the victim, at least one officer could have applied for a warrant while the others investigated. Officers did obtain a warrant for a second blood draw, which the court then upheld.

If you have been charged with a DUI or criminal-related offense, contact an experienced attorney immediately.  An attorney can probe for weaknesses in the state’s evidence.  Was the evidence against you legally obtained?  Different judges may view the facts of your case very differently.  It is important to find an attorney familiar with your courthouse who may be able to present your case in its most favorable light to your particular judge.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or  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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