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.)

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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.)

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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.)

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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.)

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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.)

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CAN THE NATURE OF THE ROAD BE A DEFENSE TO AN ILLINOIS TRAFFIC TICKET OR DUI?

In reviewing a traffic ticket or DUI, the court generally reviews all the facts of your case. In some situations, the type of road you were driving on may become important.

For example, does an officer have probable cause to stop you for improper lane usage if the road is particularly twisty? The answer may be no. See our related post What is Improper Lane Usage Under Illinois Law.

You may not legally pass a school bus that is signaling a stop. However, this law does not apply to certain types of roads. See our related post Passing a School Bus in Illinois.

In People v. Bowden, the defendant was stopped for failing to signal a lane change. The stop led to defendant’s arrest for possession of methamphetamine. However, the court granted defendant’s motion to suppress the evidence based on the nature of the road. The road had widened from a single lane into two separate lanes. The defendant had followed the right fog line with no abrupt movement in either direction. Thus, the officer lacked probable cause for the stop as no lane change had occurred.

If you have been charged with traffic or DUI offense, contact an experienced attorney immediately. An attorney can review your case for its best possible defense. Do the police have probable cause to arrest you? The answer to that question may be less than straightforward when all the facts and circumstances of your situation are taken into account. 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.)

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WHAT KIND OF WARNINGS ARE THE POLICE REQUIRED TO GIVE BEFORE I CAN BE ARRESTED FOR DUI IN ILLINOIS?

When you are arrested for DUI, the police must read you the Warnings to Motorists, but this is not the same as your Miranda rights.

The Illinois Secretary of State will try to automatically suspend your driver’s license on the 46th day after your arrest for DUI. The length of that suspension depends partly on whether you agreed to take a breathalyzer or other field sobriety tests. Before taking those tests, the officer must read you the Warnings to Motorists to inform you that your license will be suspended for a longer period if you refuse the tests.

Illinois law does not require that you understand the warnings or even that they be given to you in any language besides English. Nor does the law require you to understand the consequences of refusing the tests. The warnings are intended to help state gather evidence rather than enable you to make an informed choice.

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. Did police follow proper procedures during your arrest? Even if you do not understand the warnings, the officer must still provide them. 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.

Source: People v. Garcia-Gutierrez.

(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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HOW MUCH TIME DOES AN OFFICER HAVE TO INVESTIGATE ME AT A TRAFFIC STOP?

The officer pulled you over for speeding. He ran a check of your license and issued the ticket. But the officer asked you to not to leave quite yet. You were forced to wait while the officer ran some checks or maybe brought in a narcotics dog. You were then arrested for an offense other than the original speeding ticket.

Can they do that? What are the limits of a police stop?

An officer may stop you for one reason and investigate you for another as long as he or she does not unduly prolong the stop. Authority for the stop ends when the tasks tied to it should have reasonably been completed. This can include ordinary inquiries such as checking for outstanding warrants. The officer can check on items unrelated to the stop. But to justify prolonging the stop even for a few minutes beyond the time needed to address the initial violation, an officer must have a reasonable suspicion of wrong doing.

In People v. Cassino, the defendant was driving a rental car when he was stopped for speeding. The officer did not suspect the car was stolen but contacted Hertz and discovered that defendant was not the authorized driver. After a search of the car, defendant was arrested on drug possession charges.

The court held that the evidence from the search should be suppressed in that the officer lacked the reasonable suspicion necessary to prolong the stop. The officer had determined in less than a minute that the vehicle was a rental, that it was not reported stolen, that the defendant’s driver’s license was valid, and that there were no outstanding warrants. Thus, the additional 25 minutes spent checking with Hertz was not justified.

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. Was the stop of your car and resulting search proper? If not, an attorney may be able to petition the court to suppress the evidence from the stop. In certain cases, this could result in the dismissal of your case.

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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SCOTT’S LAW RAISES PENALTIES FOR FAILING TO YIELD TO EMERGENCY VEHICLES

If you hear a siren or see the flashing lights of an emergency vehicle, it should go without saying that you have to clear the way. Illinois requires that you move to the right side curb until the vehicle passes.

If the emergency vehicle is stopped and flashing its lights, you must change to a lane that is not next to the emergency vehicle. If changing lanes is not possible, you must reduce your speed. Known as Scott’s Law, these rules seek to protect police officers who are too often killed by oncoming motorists while providing emergency aid.

Scott’s Law was named after Lt. Scott Gillen who was struck while assisting at a crash scene in 2000. In the first five months of 2019, Illinois State Troopers have lost two officers due to violations of Scott’s Law. (See State Trooper Says We Have to Educate the Public on Scott’s Law).

If you violate Scott’s Law, causing death or damages, you can face a variety of civil and criminal penalties including losing your driver’s license for at least 90 days. As of January 1, 2020, the penalties for violating the law are going up. Besides increased fines, you can be charged with a Class A Misdemeanor if your violation caused property damage and a Class 4 felony if you caused injury or death.

If you have been charged with a criminal or traffic offense, contact an experienced attorney immediately. An attorney can review your case for its best possible defense. Was the emergency vehicle flashing its lights? Could you safely change lanes? 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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CAN POLICE SEARCH YOUR CAR? IT DEPENDS ON THE FACTS

A police officer can stop you if he or she has probable cause. An unlit headlight may be cause enough. But once stopped, an officer needs either your consent or a reasonable suspicion of wrongdoing to search your car.

What is a reasonable suspicion of wrongdoing? The answer depends on how a judge sees the specific facts of your situation.

A recent Illinois case provides a good example. In People v. Thomas, the defendant was stopped because of an obstructed windshield. An officer warned the defendant and returned his license. At that point, defendant’s first detention was over. However, the officer continued to question him, then brought a dog to sniff defendant’s car. This created a second detention which required the officer to have a reasonable suspicion of wrongdoing beyond the obstructed windshield.

The officer testified that the defendant was excessively nervous and drove under the speed limit. Defendant’s route appeared to be out of the way to his intended destination. There was evidence of hard travel (energy drinks and junk food). Defendant drove instead of flew across country but only intended to stay a few days and had no luggage. Finally, defendant had a criminal history of drug trafficking.

The court held that the officer lacked a reasonable suspicion to search defendant’s car. Neither nervousness, a criminal history, nor driving a couple miles under the speed limit by themselves was enough to create reasonable suspicion. Defendant’s route was suggested by Google Maps. While drug couriers also avoid overnight stops and rely on energy drinks and junk food, so do many innocent drivers. It was not unusual for people to drive long distances, even where flying was cheaper, and not everyone owned luggage.

If you have been charged with DUI or a similar offense, contact an experienced attorney immediately. Was the police search of your car illegal? If so, an attorney may be able to petition the court to suppress the results of your arrest. In limited situations, this could result in dismissal of your case or at least make it harder for the prosecution to convict you. Be aware, however, that different judges may view the facts differently. An attorney who is respected and familiar with the courthouse may have a better chance of persuading 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 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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