DRIVING UNDER THE INFLUENCE OF CANNABIS—THE NEW ILLINIOIS LAW

With the legalization of marijuana in Illinois, now is a good time for a reminder that you can still be charged with DUI if you drive while impaired.

Under Illinois law, you may not drive or be in actual physical control of a motor vehicle if within two hours 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 other bodily substance. (See 625 ILCS 5/11-501(a)(7)).

Of course, the problem is knowing how much is too much.

Police departments across Illinois are still seeking the best way to test if you have reached that limit. For example, Carol Stream Police are investigating mobile detection machines that use mouth swabs. (See With no standard way to test drivers for THC, suburban cops test an option). Decatur police are going to try blood tests. (See Decatur police will use blood tests to check drivers for pot use.)

In the absence of a standardized device such as the breathalyzer, police usually rely on specialized drug impairment training.

If you are charged with DUI based on marijuana or other drug, contact an experienced DUI attorney. An attorney can first try to contest the police stop. Furthermore, the state must prove you guilty of all elements of the offense beyond a reasonable doubt. Can the state prove you were impaired? Even if the police acted lawfully 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.)

Posted in Uncategorized | Comments Off on DRIVING UNDER THE INFLUENCE OF CANNABIS—THE NEW ILLINIOIS LAW

CAN I BE ARRESTED FOR DUI FOR SLEEPING IN MY CAR?

One night, you went out with colleagues after work. The drinking ran a bit late, and it had been an especially stressful day. As you drove home, you could barely keep your eyes open, so you pulled over and fell asleep in your car. Suddenly, an officer knocked on your window, startling you awake. The officer asked you to get out of the car, and before long you were charged with DUI.

Is the arrest legal? What can you do?

Before an officer stops you, he or she must have a reasonable suspicion of wrong doing. In People v. Shelton, officers responded to an anonymous 911 report that a driver was asleep in the intersection. The court found the stop was justified. An officer is not required to watch your car to personally observe suspicious driving. Furthermore, sleeping in an intersection causes a hazard and suggests the decreased vigilance and impaired judgment associated with drunk driving.

But if you took the trouble to legally park rather than blocking the road? The officer may still have valid grounds to approach you. Under the police community caretaking function, an officer can check to see if you need help. Once the officer smells the alcohol and notices the “bloodshot eyes” and “slurred speech,” you are on your way to the police station.

While you may have trouble fighting the stop itself, your case is not necessarily a lost cause. The state must still prove all the elements of the offense—that you were in actual physical control of a motor vehicle while impaired—beyond a reasonable doubt. In Illinois, sitting in a car with the keys anywhere within reach is enough to establish actual physical control. However, the state may still have difficulty proving you were impaired if, for example, the police video shows you did well on field sobriety tests, you had no trouble exiting the car and you spoke clearly to police.

If you have been charged with DUI or similar offense, contact an experienced attorney immediately. An attorney can review your case for its best possible defense. Can the state prove your keys were in the car or that you were impaired? Even if 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.)

Posted in probable cause | Tagged | Comments Off on CAN I BE ARRESTED FOR DUI FOR SLEEPING IN MY CAR?

WHEN CAN A COURT DISMISS MY DUI CASE?

DUI cases do not routinely get thrown out of court short of a plea agreement or trial. But the court can dismiss your case if it meets certain criteria.

A court may dismiss a case on any of the following bases:

  1. Your case did not go to trial within the time limits of the speedy trial act.
  2. Prosecution is barred by double jeopardy.
  3. You received immunity from prosecution.
  4. You were indicted by a grand jury that was not properly selected or certified, resulting in substantial injustice to you.
  5. The court does not have jurisdiction or the county is an improper place of trial.
  6. The charge against you does not state an offense. For example, the indictment omits an element of the offense charged.
  7. The indictment against you is based on testimony from an incompetent witness, for example, the witness is mentally ill.
  8. You are incorrectly named resulting in substantial injustice to you.
  9. Bail was not set or you were not indicted by a grand jury within certain time limits.

Apart from the above statutory grounds, the court may dismiss a case where there is a clear denial of due process which prejudices you. (See People v. Atchison and People v. Lopez.) Be aware, however, that whether a judge thinks your case meets the legal grounds for dismissal can be very fact specific and opinions can differ widely between judges. Therefore, an attorney who knows the courthouse may be better able to present your case in its most favorable light before your particular judge.

If you have been charged with a DUI or traffic offense, contact an experienced criminal law attorney immediately. If your case meets one of the above criteria, an attorney may be able bring a motion before the court seeking 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.

See 725 ILCS 5/114-1.

(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.)

Posted in Uncategorized | Comments Off on WHEN CAN A COURT DISMISS MY DUI CASE?

DO I HAVE TO COME TO COURT ON MY ILLINOIS DUI WHEN I LIVE OUT OF STATE?

The answer is usually yes. However, there are things an attorney may do to minimize some of the pain and inconvenience. For example, an attorney may be able to move the court date or request a longer interval between court dates when you have scheduling conflicts.

After a DUI arrest, the officer will give you your first court date. On that date, your attorney will enter his or her appearance. The attorney may subpoena the evidence against you in advance and may then receive evidence. If you are seeking to overturn the automatic suspension of your driver’s license, your attorney must file your petition in advance for the hearing to take place on the first court date.

If the evidence is overwhelmingly against you, your attorney may need to negotiate a plea agreement. If a favorable agreement can be reached, you may only need to come to court a second time. However, you may still need to obtain an substance abuse evaluation from a court-authorized evaluator in the county where your court is held.

If you instead wish to fight your DUI, there may be several more court appearances before and including trial. Court appearances are usually monthly. However, the problems of having a DUI on your driving record often outweigh the inconvenience of travel to court. Many clients have come to me after a second-time DUI who could have avoided severe penalties if they had gone to trial on a fightable first case.

If you have been charged with DUI or a similar offense, contact an experienced attorney immediately. An attorney can review your case for its best possible defense. Did the police have probable cause to stop you? Can you overturn the suspension of your driver’s license? Does the police video show that you performed well on field sobriety tests? Do you need help negotiating a more favorable plea agreement?

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.)

Posted in out of state dui | Comments Off on DO I HAVE TO COME TO COURT ON MY ILLINOIS DUI WHEN I LIVE OUT OF STATE?

ILLINOIS SUPREME COURT UPHOLDS STATUTE REQUIRING A DRIVER TO SUBMIT TO BLOOD, BREATH AND BODILY FLUID TESTING

Overturning a lower court’s decision, the Illinois Supreme Court upheld a part of the Illinois statute on alcohol testing which requires that a driver submit to blood, breath or bodily fluid testing for drugs or alcohol where an officer has probable cause to believe that the driver caused death or personal injury while driving under the influence.

The First District Appellate Court in the earlier People v. Eubanks had held that 625 ILCS 5/11-501.2(c) was facially unconstitutional. The defendant in that case caused a fatal accident. An officer asked defendant to submit to blood tests, which defendant refused. The officer then took defendant to a hospital where his blood was forcibly drawn. He was further threatened with a catheter if he did not submit a urine sample.

In the later People v. Eubanks, the Illinois Supreme Court considered whether a warrantless search based on exigent circumstances could be justified under the Illinois testing law. Exigent circumstances may exist where there is danger that evidence, such as blood alcohol levels, may disappear.

The court held that the testing law set out the type of general rule (testing required where officer has probable cause to believe a driver caused injury or death while driving under the influence) that will almost always support a warrantless blood draw. The general rule would not apply where the blood draw is solely for law enforcement purposes, and the police could not have reasonably judged that applying for a warrant would interfere with other pressing needs or duties.

While the Illinois Supreme Court upheld the law itself, the court still found the law unconstitutional as applied to defendant because of the lengthy delay in obtaining the testing. One factor in determining whether a warrantless search is reasonable is whether a warrant could have been obtained within a timeframe that preserves the opportunity to collect reliable evidence.

“Here, the police waited so long to get the blood and urine samples that defendant’s BAC was zero, even though he admitted to drinking Hennessy and he smelled of alcohol…. It simply defies belief that the police could not have attempted to gain a warrant without significantly delaying the time of the testing.” the Court wrote.

If you have been charged with DUI, contact an experienced attorney immediately. An attorney can review your case for its best possible defense. In most cases, a judge will look at the totality of the circumstances. Under such totality, were the police justified in forcing you to take a blood, breath or urine test? Even if the police acted lawfully 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.)

Posted in DUI evidence, DUI testing | Tagged , , | Comments Off on ILLINOIS SUPREME COURT UPHOLDS STATUTE REQUIRING A DRIVER TO SUBMIT TO BLOOD, BREATH AND BODILY FLUID TESTING

IS THE BREATHALYZER TEST RELIABLE?

You honestly didn’t have much to drink at the football game, but a police officer stopped you on the way home for improper lane usage. You took the breathalyzer test, figuring you would pass it anyway. But the test results were surprisingly high. You really only had three beers. Can the machine be correct?

According to a recent New York Times investigation, breathalyzer machines nationwide are often less accurate than advertised. As a result, thousands of test results have been invalidated in recent years across the country. In some cases, poor maintenance is to blame such as where rats were found nesting inside one machine. See These Machines Can Put You in Jail, Don’t Trust Them.

If you believe your breathalyzer reading is suspiciously high, you may be able to contest the result. This can be difficult since many courts will not allow you to obtain the breathalyzer manufacturer’s proprietary data such as their programming codes. However, the right expert may be able to determine whether the machine operated improperly or was improperly maintained.

If you have been charged with DUI or a similar offense, contact an experienced DUI attorney immediately. An attorney can probe for weaknesses in the state’s case. 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.)

Posted in breathalyzer/field sobriety test, DUI evidence | Tagged | Comments Off on IS THE BREATHALYZER TEST RELIABLE?

CAN THE STATE PROVE YOU WERE DRIVING IN AN ILLINOIS DUI?

If you are charged with DUI, the state must prove beyond a reasonable doubt: 1) that you were impaired and 2) that you were driving. This burden may be more difficult to meet if no one actually saw you behind the wheel of the car. But sometimes the state can prove driving through circumstantial evidence.

In a typical DUI, an officer may stop you for a traffic violation and thus, can testify that you were driving. Bear in mind that this applies even if the officer instead found you sleeping in the car. If instead the officer arrives at the scene of an accident, the state may call the other driver as a witness to your driving. If the other driver fails to appear, the state may not be able to meet its burden of proof.

But what if you left the vehicle? The state may still be able to prove driving through inferences. For example, in People v. Day, an officer found the defendant walking barefoot a mile from the scene of a one-vehicle accident. Defendant admitted he owned the vehicle, and that his cell phone and flip flops were on the driver’s side floorboards. Defendant then claimed a “Buddy Young” had been driving but couldn’t say how long he had known Buddy Young and didn’t know how to reach him. From that, the court concluded that Buddy Young did not exist, and thus, it was reasonable to infer that defendant had been driving the truck.

If you have been charged with DUI or a similar offense, contact an experienced DUI attorney immediately. An attorney can review your case for its best possible defense. Can the state prove all the elements of DUI beyond a reasonable doubt? Even if the police acted lawfully 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.)

Posted in DUI evidence | Comments Off on CAN THE STATE PROVE YOU WERE DRIVING IN AN ILLINOIS DUI?

CAN I DRIVE WITH RECREATIONAL MARIJUANA IN THE CAR?

Recreational marijuana is about to become legal in Illinois, but that doesn’t mean you can cruise the highway lazily puffing a joint with your stash on the seat. Be aware that there are still limits.

As with open alcohol, you may not drive while using cannabis in the passenger area of your car while on the road. See 625 ILCS 5/11-502.15. Furthermore, no one may possess cannabis in the car’s passenger compartment unless the cannabis is in a sealed, odor-proof, child resistant cannabis container. Violating either law is a Class A misdemeanor, punishable by up to one year in jail.

Driving under the influence of marijuana remains illegal. If you drive on Illinois roads, you are deemed to have consented to validated roadside chemical tests as well as other field sobriety tests. Refusing to submit to these tests enables the Illinois Secretary of State to increase the length of your automatic driver’s license suspension. See 625 ILCS 5/11-501.2. Illinois police are currently studying the best way to test for marijuana intoxication.

Producing or possessing more than five marijuana plants remains a felony. However, producing or possessing less than that amount, unless otherwise permitted by law, has been declassified from a Class A misdemeanor to a civil fine. See 720 ILCS 550/8.

If you have been charged with driving under the influence of cannabis or similar offense, contact an experienced DUI attorney immediately. An attorney can review your case for its best possible defense. Do the police have probable cause to stop you? Can the state prove you were driving while impaired beyond a reasonable doubt? Even if the police acted lawfully 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.)

Posted in DRIVING UNDER THE INFLUENCE, DUI evidence | Tagged , | Comments Off on CAN I DRIVE WITH RECREATIONAL MARIJUANA IN THE CAR?

CAN I DRINK IN THE ALLEY? THE OFFENSE OF DRINKING IN PUBLIC WAYS

You and your friends were hanging out in the alley with a bottle of Grey Goose vodka. A police cruiser spotted you with the booze. As a result, you were all arrested for drinking in public ways. The police then patted you down and found drugs and a gun in your pocket. You were then arrested for drinking in public ways and for possession of contraband.

What is drinking in public ways? What can you do?

Depending on whether you were actually on the public way, you may be able to suppress the evidence from your arrest.

Most municipalities have a law prohibiting alcohol in the public way. Under the Chicago Municipal Code, it is unlawful to drink alcohol on any public way or in any motor vehicle on a public way in the city. It is also unlawful to transport or have alcohol in a motor vehicle upon any public way unless it’s in the original package with an unbroken seal. You may possess a partially consumed bottle of wine but only if you ate a meal at the restaurant where you got the wine, and the restaurant sealed the wine bottle for you in accordance with state law. A “public way” is defined as “any sidewalk, street, alley, highway or other public thoroughfare.” A violation can result in a $500.00 fine and/or six months in jail. Your fine may be increased to $1000 if your violation took place within 800 feet of a parade route. See Drinking on the Public Way.

In People v. Brown, the court held that a defendant was not on the public way when drinking beer in a gas station parking lot near a car parked next to a vacuum. As a result, the officer lacked probable cause to search the defendant and thus, the crack cocaine found during the search was suppressed.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Did the police have probable cause to search you? If not, an attorney may petition the court to suppress the results of that search.

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.)

Posted in probable cause | Tagged , | Comments Off on CAN I DRINK IN THE ALLEY? THE OFFENSE OF DRINKING IN PUBLIC WAYS

DO I HAVE A RIGHT TO SEE THE POLICE VIDEO OF MY ILLINOIS DUI ARREST?

The officer stopped you for a broken tail light. When you rolled down your window, he smelled the odor of alcohol and asked you to get out of the car. You took the field sobriety tests and thought you did pretty well, but the officer arrested you anyway. If there is a video, you think it will prove you were OK.

Do you have a right to see the video? The answer is yes.

During your arrest, the officer likely wore a body camera or had a camera mounted on his or her squad car. If there is a recorded video, your attorney should be able to subpoena it along with any other evidence the state has against you. Your attorney may watch the video and evaluate the likelihood of winning your case at trial based on your driving, your performance on tests and the judge hearing your case.

Your attorney may allow you to watch the video, but note that the attorney is not permitted to turn the video over to you.

At trial, the judge or jury will likely see the video. When that happens, you have a constitutional right to view the video at that time.

In People v. Lucas, the court held that the defendant was denied due process where the judge, prosecutor and defense attorney retired to the judge’s chamber to view the video outside of the defendant’s presence. The record did not reflect whether the defendant was told she had a right to view the video. As a result, the court said she was denied her constitutional right to view the evidence against her and aid in her own defense. A defendant has a constitutional right to be present at any stage of the criminal proceeding that is critical to its outcome if her presence would contribute to the fairness of the procedure.

If you have been charged with a DUI or a similar crime, contact an experienced DUI attorney immediately. An attorney can review the evidence for weaknesses in the state’s case. Did police give you the proper warnings to motorists? Did you perform well enough on the tests? Even if police acted properly 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.)

Posted in DUI evidence | Tagged , | Comments Off on DO I HAVE A RIGHT TO SEE THE POLICE VIDEO OF MY ILLINOIS DUI ARREST?